Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section. (b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess. (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt. (d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section). (e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower. (f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12. (g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment. (h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 4 contracts
Samples: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any BorrowingBorrowing of any Class of Loans, in whole or in part, as selected by the Borrower in its sole discretion and subject to the requirements of this SectionSection 2.11.
(b) In the event and on each such occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Collateral Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, promptly after such Net Proceeds are received by Holdings, the Borrower or such Restricted Subsidiary (including and in any event not later than the fifth Business Day after such Net Proceeds are received), prepay Term Loan Borrowings in an amount equal to 100% of such Net Proceeds; provided that to the extent required by the Administrative Agent as loss payee in respect terms of any Prepayment Event Permitted Debt that is secured by the Collateral on a pari passu basis with the Obligations, the Borrower may, in lieu of prepaying Term Loans with such portion of the Net Proceeds of any prepayment event described in clause (a) or clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day apply a portion of such Net Proceeds are received, prepay (based on the respective principal amounts at such time of (A) such Permitted Debt and (B) the Term Borrowings in an aggregate amount equal Loans) to 100% of the amount of repurchase or redeem such Net ProceedsPermitted Debt; provided that, further that in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, to acquire or replace real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied or contractually committed in writing by the end of such 360365-day period (or within a period of 180 days thereafter and, if by so contractually committed in writing but not applied prior to the end of such initial 360365-day period period, applied within 180 days of the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire end of such real property, equipment or other tangible assetsperiod), at promptly after which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided.
(d) Following the end of each fiscal year of Holdings, furthercommencing with the fiscal year ending December 31, that 2017, the Borrower may use shall prepay Term Loan Borrowings in an amount equal to a portion the excess of (A) the ECF Percentage of Excess Cash Flow for such year over (B) the sum of (x) the principal amount of Term Loans prepaid pursuant to Section 2.11(a) and the amount expended to prepay Term Loans pursuant to Section 2.11(i), in each case, during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment, (y) the amount expended to prepay Permitted Debt that is secured on a pari passu basis with the Obligations during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment and (z) the amount of Loans under Revolving Commitments, Extended Revolving Commitments and Incremental Revolving Commitments that are repaid during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment, in the case of this clause (z), to the extent accompanied by a reduction in the related commitment and, in the case of each of the foregoing clauses (x), (y) and (z), other than any repayment in connection with a refinancing. Each prepayment pursuant to this paragraph shall be made within five (5) Business Days of the date on which financial statements are delivered pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash Flow is being calculated and the related Compliance Certificate has been delivered pursuant to Section 5.01(c) (and in any event within 95 days after the end of such fiscal year).
(e) Each prepayment of Term Loans pursuant to clauses (a), (c) or (d) of this Section 2.11 (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as selected by the Borrower in its sole discretion in the notice delivered pursuant to clause (f) below, to any Class or Classes of Term Loans, (B) shall be applied to scheduled amortization with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.10(a) and (C) shall be paid to the Class of Lenders in accordance with their respective pro rata share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (f) below. Notwithstanding clause (A) above, prepayments with Net Proceeds from a Prepayment Event any event described in clause (a) or (bc) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt shall be applied to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment Class or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount Classes of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar selected by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded SourcesBorrower. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to shall determine in accordance with the next sentence, select foregoing provisions of this Section 2.11 the Borrowing or Borrowings of each applicable Class to be prepaid and shall specify such selection determination in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower2.11.
(f) The Borrower shall notify the Administrative Agent by facsimile or telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, time on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid, the Class of Loans to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that that, (Ai) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (Bii) otherwise if a notice of prepayment of Term Borrowings pursuant to paragraph (a) of is given under this Section may state that 2.11, such notice is of prepayment may be conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinthe closing of a refinancing transaction, in which case a sale of all or substantially all of the assets of the Borrower and its Subsidiaries or a Change of Control and such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans of each applicable Lender included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13 but shall in no event include premium or penalty.
(g) All Each Term Lender may reject all or a portion of its pro rata share of any mandatory prepayment (isuch declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (c) and (d) of this Section 2.11 (except in respect of mandatory prepayments made with Net Proceeds from any event described in clause (c) of Tranche B Term Borrowings effected on or prior the definition of the term “Prepayment Event”) by providing written notice (each, a “Rejection Notice”) to the six-month anniversary Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Lender’s receipt of notice from the Effective Date, in each case with Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B mandatory repayment of Term Borrowings so prepaid, in Loans to be rejected by such Lender. If a Lender of Term Loans fails to deliver a Rejection Notice to the case of a transaction described in clause (i) of this paragraph, Administrative Agent within the time frame specified above or 1.00% of such Rejection Notice fails to specify the aggregate principal amount of Tranche B the Term Borrowings affected by Loans to be rejected, any such amendment, amendment failure will be deemed an acceptance of the total amount of such mandatory prepayment of its Term Loans. Any Declined Proceeds shall be offered to the Lenders of Term Loans not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of each such Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the time and restatement or other modification, in the case manner specified by the Administrative Agent). To the extent such non-declining Lenders of a transaction described in clause (ii) its Term Loans elect to decline their pro rata shares of this paragraph. Notwithstanding the foregoingsuch Declined Proceeds, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee any Declined Proceeds remaining thereafter shall be paid retained by the Borrower to (such remaining Declined Proceeds, the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment“Borrower Retained Prepayment Amounts”).
(h) Notwithstanding any other provisions of this Section 2.102.11, (i) to the extent that any of or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” disposition by a Foreign Subsidiary (“Foreign Disposition”), the Net Proceeds of any casualty event from a Foreign Subsidiary (a “Foreign Casualty Event”) or Excess Cash Flow attributable to Foreign Subsidiaries, in either case Subsidiaries are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences United States, an amount equal to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary 2.11 so long, but only so long, as the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (the Borrower or hereby agreeing to use commercially reasonable efforts to cause the applicable Domestic SubsidiaryForeign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and (ii) to the extent that the repatriation of any of or all the Borrower believes Net Proceeds of any Foreign Disposition or any Foreign Casualty Event or Excess Cash Flow attributable to Foreign Subsidiaries would have adverse tax consequences (as reasonably determined in good faith that by the Borrower) with respect to such material adverse tax consequence would resultNet Proceeds or Excess Cash Flow, an amount equal to such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.11; provided that, if and once to the extent any such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or at any time during the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequencesone (1) year period immediately following the date on which the applicable mandatory prepayment pursuant to this Section 2.11 was required to be made, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 2.11 to the extent provided herein. For the avoidance of doubt, the non-application of any Net Proceeds pursuant to this Section 2.11(h) shall not constitute a Default or an Event of Default.
(provided that no such i) In addition to any prepayment of the Term Loans pursuant to this Section 2.10 shall be required in 2.11(a), Holdings, the case Borrower or any Subsidiary of the Borrower may at any time prepay Term Loans of any Class of any Lender at such Net Proceeds price or Excess Cash Flow the repatriation of which prices as may be mutually agreed by Holdings, the Borrower believes in good faith would result in material adverse tax consequencesor such Subsidiary, if on or before the date one hand, and such Lender, on which such Net Proceeds so retained would otherwise have been required the other hand (which, for avoidance of doubt, may be a prepayment at a discount to be applied to reinvestments or prepayments par), pursuant to paragraph (cindividually negotiated transactions or offers to prepay that are open to Lenders of Term Loans of any Class(es) of this Section (selected by Holdings, the Borrower or such Excess Cash Flow would have been Subsidiary so required if it were Net Proceeds), long as (x) immediately after giving effect to any such prepayment pursuant to this Section 2.11(i), no Event of Default has occurred and is continuing, (y) no proceeds of Revolving Loans are utilized to fund any such prepayment and (z) Holdings, the Borrower applies or such Subsidiary, as applicable, and each Lender whose Term Loans are to be prepaid pursuant to this Section 2.11(i) execute and deliver to the Administrative Agent an amount equal to instrument identifying the amount of Term Loans of each Class of each such Net Proceeds Lender to be so prepaid, the date of such prepayment and the prepayment price therefor. The principal amount of any Term Loans of any Class prepaid pursuant to this paragraph (i) shall reduce remaining scheduled amortization for such Class of Term Loans on a pro rata basis.
(j) Notwithstanding anything in this Agreement to the contrary, in the event that on any date, an outstanding Term Loan of a Lender would otherwise be repaid or Excess Cash Flow prepaid from the proceeds of any new Term Loans to be established on such reinvestments or prepayments as date then, if such Net Proceeds or Excess Cash Flow had been received agreed to by the Borrower rather than and such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied Lender and notified to the repayment Administrative Agent, such outstanding Term Loan of Indebtedness such Lender may be converted on a “cashless” basis into a new Term Loan of a Foreign Subsidiary)the applicable Class being established on such date.
Appears in 3 contracts
Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.11), in an aggregate principal amount that (except as otherwise provided in Section 2.15) is an integral multiple of $1,000,000 and not less than $1,000,000 or, if less, the amount outstanding, subject to the requirements of this Section. The Borrower shall have the right to elect by notice to the Administrative Agent that an optional prepayment that is not a Discounted Voluntary Prepayment and that is not subject to the notice contemplated in Section 2.06(d)(iii) is to be applied to a specific scheduled repayment to be made pursuant to Section 2.05 (any such payment, an “Advance Amortization Payment”); provided that (i) each such Advance Amortization Payment shall (x) be made in an amount equal to such scheduled repayment and (y) be applied to the next such scheduled repayment that has not been prepaid by an Advance Amortization Payment and (ii) for the avoidance of doubt, no Advance Amortization Payment shall be deemed to constitute a prepayment for the purposes of Section 2.06(d).
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three not later than the Business Days Day next after the day date on which such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount Required Percentage of such Net Proceeds; provided thatProceeds or, in the case of any event described in clause (a) or (b) an Equity Issuance by the Ultimate Parent, the Required Percentage of the definition Allocable Net Proceeds of the term “such Prepayment Event”; provided that, solely in the case of any Asset Disposition, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower or a Subsidiary intends to cause apply the Net Proceeds from such event Asset Disposition (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or such Subsidiaries or to fund a Permitted Acquisition in accordance with the Restricted Subsidiaries terms of Section 6.04, in each case as specified in such certificate (any such event, a “Reinvestment”), and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event Asset Disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom (i) that the Borrower or the applicable Subsidiary shall have determined not to, or shall have otherwise ceased to, or is not able to, by operation of contract or law or otherwise, apply toward such Reinvestment or (ii) that have not been so applied applied, or contractually committed to be so applied, by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), in each case at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been, or have been determined not to be, so appliedapplied (it being understood that if any portion of such proceeds are not so used within such 365-day period but within such 365-day period are contractually committed to be used, then upon the earlier to occur of (A) the termination of such contract and (B) the expiration of a 180-day period following such 365-day period, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided, further, that the Net Proceeds applied toward Reinvestments or contractually committed to be so applied pursuant to the foregoing proviso shall not exceed $10,000,000 in the aggregate during any fiscal year.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Ultimate Parent or any of its Subsidiaries in respect of any Ultimate Parent Asset Disposition, the Borrower may use shall, not later than the Business Day next after the date on which such Net Proceeds are received, prepay Borrowings in an aggregate amount equal to a portion the Required Percentage of the Net Proceeds of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtUltimate Parent Asset Disposition.
(d) Following the end of each Fiscal Yearfiscal quarter of the Borrower, commencing with the Fiscal Year fiscal quarter ending December March 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2013, the Borrower shall will prepay Term Borrowings in an aggregate amount equal to (i) (A) the Specified ECF Percentage of Excess Cash Flow for as of the end of such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar fiscal quarter multiplied by the aggregate amount applicable ECF Sweep Percentage in effect at such time, minus (B) all prepayments made during the applicable ECF Period pursuant to this Section 2.06(d)(i) as of the end of such fiscal quarter (including any prepayments that are applied to payments due under this Section 2.06(d)(i) pursuant to an Election Notice delivered pursuant to Section 2.06(e)), less (ii) any voluntary prepayments of Term Borrowings Loans made pursuant to paragraph Section 2.06(a) during such fiscal quarter (aother than any Advance Amortization Payments and any prepayments that are applied to payments due under this Section 2.06(d)(i) pursuant to an Election Notice delivered pursuant to Section 2.06(e) and except as provided in Section 2.15(f)), provided that any prepayment applied pursuant to clause (iii) of this Section during 2.06(d) to reduce a prepayment made pursuant to this Section 2.06(d) shall not be applied in the subsequent quarter pursuant to this clause (ii) to reduce a prepayment made pursuant to this Section 2.06(d), less (iii) any voluntary prepayments of the Loans (other than an Advance Amortization Payment, any prepayments that are applied to payments due under this Section 2.06(d)(i) pursuant to an Election Notice delivered pursuant to Section 2.06(e), and except as provided in Section 2.15(f)) made since the end of such Fiscal Year, excluding any such prepayments fiscal quarter to the extent financed from Excluded Sourcesthe Borrower has, on or prior to the date any mandatory prepayment is due under this paragraph (d) with respect to such fiscal quarter, specified in an Election Notice delivered to the Administrative Agent that such voluntary prepayments shall be applied to reduce the amount of such mandatory prepayment. Each prepayment pursuant to this paragraph shall be made on or before the date on which financial statements are delivered pursuant to Section 5.01 with respect to the fiscal quarter at the end of which Excess Cash Flow is being calculated (and in any event within (x) 55 days after the end of such fiscal quarter or (y) if such fiscal quarter is the last fiscal quarter in a fiscal year of the Borrower, 100 days after the end of such fiscal quarter), provided that is three Business Days if the Closing Date occurs after the date on which such prepayment would otherwise have been due hereunder for the period ended March 31, 2013, then the mandatory quarterly prepayment pursuant to this paragraph for such period shall be due and payable on the Closing Date.
(e) Subject to the immediately following sentence, the Borrower shall on one or more occasions use the Borrower’s Discounted Prepayment Portion of Excess Cash Flow, as determined following the end of a fiscal quarter, to effect Discounted Voluntary Prepayments within 180 days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to such quarter, with such Discounted Voluntary Prepayments to be designated as having been made to satisfy the Fiscal Year for which Borrower’s obligations under this Section 2.06(e) pursuant to an Election Notice delivered to the Administrative Agent. If the Borrower does not make such Discounted Voluntary Prepayments within such 180-day period equal to the Borrower’s Discounted Prepayment Portion of Excess Cash Flow is being calculated for the applicable fiscal quarter (as designated in the applicable Election Notice), the Borrower shall (i) make an optional prepayment pursuant to Section 2.06(a) at the end of the fiscal quarter during which such 180-day period (as designated in an Election Notice to such effect) expires, with such prepayment to be applied to scheduled prepayments under Section 2.05, as directed by the Borrower, or (ii) make a prepayment as described in Section 2.06(d)(iii) (and as designated in any event an Election Notice to such effect). The Borrower may retain the Borrower’s Discretionary Portion of Excess Cash Flow and may utilize such Borrower’s Discretionary Portion of Excess Cash Flow for purposes otherwise permitted hereunder, including, but not later than limited to, at the last day on which such financial statements may be delivered Borrower’s option and in compliance with such Sectionthe Borrower’s sole discretion, (i) to effect Discounted Voluntary Prepayments or (ii) for optional prepayments pursuant to Section 2.06(a).
(ef) Prior to any optional or or, subject to Sections 2.06(b), (c) and (d), mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.2:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest and other amounts to the extent required by Section 2.12Sections 2.08 and 2.11.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 3 contracts
Samples: Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this SectionSection 2.11; provided that all prepayments under this Section 2.11(a) shall be accompanied by the Repricing Premium, if applicable.
(b) In the event and on each occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings and Swing Line Loans (orand, to the extent that any such excess exists after all Revolving Borrowings (if no such Borrowings are outstandingany) and Swing Line Loans (if any) have been prepaid, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal necessary to eliminate such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any of the Restricted Subsidiary Subsidiaries in respect of any Prepayment Event Event, the Borrower shall, within five Business Days after such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”,” on the date of such Prepayment Event), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, (i) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ” if the Borrower shall, prior and the Subsidiaries invest (or commit to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause invest) the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 days twelve (12) months after receipt of such Net Proceeds to acquire real property, equipment or other tangible in assets to be used useful in the business of the Borrower or and the Restricted other Subsidiaries and certifying that no Default has occurred and is continuing(including any acquisitions permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect of the such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds specified in such certificateProceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied invested (or committed to be invested) by the end of such 360-day period twelve (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)12) month period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that invested (or committed to be invested) and (ii) in the Borrower may use an amount equal to a portion case of such Net Proceeds from a Prepayment Event any event described in clause (a) or (b) of the definition of the term “Prepayment Event” ”, if at the time that any such prepayment would be required hereunder, the Borrower is required to offer to repurchase or prepay any other Indebtedness secured on a pari passu basis (or repurchase any Permitted Pari Passu Credit Agreement Refinancing Debt Indebtedness in respect thereof that is secured on a pari passu basis with the Secured Obligations) pursuant to the extent that terms of the documentation governing such Permitted Pari Passu Indebtedness with Net Proceeds (such Indebtedness (or Credit Agreement Refinancing Debt requires such a prepayment Indebtedness in respect thereof) required to be offered to be so repurchased or repurchase thereof with prepaid, the proceeds of such Prepayment Event“Other Applicable Indebtedness”), in each case in an amount not to exceed then the product of (x) the amount of Borrower may apply such Net Proceeds on a pro rata basis to the prepayment of the Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (y) a fraction, determined on the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that the aggregate outstanding principal portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Permitted Pari Passu Refinancing DebtNet Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(c) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2018, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Yearfiscal year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.08, Revolving Loans) made pursuant to paragraph (aSection 2.11(a) of this Section during such Fiscal Year, excluding any fiscal year or after such prepayments fiscal year and prior to the time such prepayment is due as provided below (without duplication in successive periods) (solely to the extent financed from Excluded Sourcessuch prepayments funded with the proceeds of Internally Generated Cash). Each prepayment pursuant to this paragraph shall be made on or before the date that is three five Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)calculated.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings (and, to the extent provided in the Incremental Facility Refinancing Amendment for any Class of Incremental Other Term Loans, the Borrowings of such Class, ) pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Refinancing Amendment for any Class of Incremental Other Term Loans, any Lender that holds Incremental Other Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one no later than ten (10) Business Day prior to Days after the required prepayment datedate of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment, to decline all or any portion (but not part) of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Other Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this SectionSection 2.11, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Other Term Loans of any such Class but was so declined shall may be retained by the Borrower. Optional prepayments of Term Borrowings shall be allocated among the Classes of Term Borrowings and applied to scheduled amortization as directed by the Borrower. In the absence of a designation by the Borrower as described in the preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.16; provided that, in connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to Section 2.11(c) or (d), 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 waive a given mandatory prepayment of the Term Loans pursuant to this Section 2.11(e), then, with respect to such mandatory 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 in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.16.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.2:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on two Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of one some other identifiable event or more events specified thereincondition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied; provided further that, any notice of mandatory prepayment pursuant to Section 2.11(c) or (d) must be delivered not later than 2:00 p.m., New York City time, three Business Days before the date of prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. With respect to each Class of Term Loans, all accepted prepayments pursuant to Section 2.11(c) or (d) shall be applied against the remaining scheduled amortization payments in respect of the Term Loans in direct order of maturity. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13. At the Borrower’s election in connection with any prepayment pursuant to this Section 2.11, such prepayment shall not be applied to any Term Loan or Revolving Loan of a Defaulting Lender and shall be allocated ratably among the relevant non-Defaulting Lenders.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a2.11(c) or (bd), mandatory prepayments described in of Section 2.11(c) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group d) will not be required (and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit avoidance of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to doubt, the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to increase the amount of mandatory prepayments required to be applied made to prepay offset the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any application of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected limitation and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net reduction of additional taxes payable or reasonably estimated to be payable mandatory prepayments as a result thereof) to the prepayment extent the Borrower reasonably determines (in consultation with the Administrative Agent) that any required repatriation of funds from the Borrower’s Foreign Subsidiaries in order to effect such prepayments would, in the good faith judgment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds)Borrower, (x) have a material adverse tax or cost consequence for the Borrower applies an amount equal to the amount of such Net Proceeds Borrower, its Restricted Subsidiaries or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received its beneficial owners determined in good faith by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) contravene or be delayed by applicable law (the “Excluded Amounts”); provided that the Borrower shall take commercially reasonable actions required by applicable law to permit the repatriation of relevant amounts on or prior to the date of calculation of such Net Proceeds excess cash flow payment. Notwithstanding the foregoing, any prepayments required after application of the above provision shall be net of any costs, expenses or taxes incurred by the Borrower and its Restricted Subsidiaries and arising as a result of compliance with the preceding sentence. The nonapplication of any such mandatory prepayment amounts as a result of the foregoing provisions will not constitute a default or an event of default and such amounts shall be available for working capital purposes of the Borrower and its Restricted Subsidiaries. For purposes of the foregoing, Excess Cash Flow are applied to shall be allocated among Foreign Subsidiaries determined by the repayment Borrower in consultation with the Administrative Agent and the Excluded Amounts shall be available for working capital or other purposes of Indebtedness of a the Borrower, the Foreign Subsidiary)Subsidiary or any Restricted Subsidiary determined by the Borrower in consultation with the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Greenhill & Co Inc), Credit Agreement (Greenhill & Co Inc)
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and If on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any date any Net Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Parent Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings in apply an aggregate amount equal to 100% of the aggregate amount of such Net Proceeds, first, to prepay Term Loans and, second, (after the Term Loans have been paid in full) to the Domestic Revolving Loans and the Global Revolving Loans on a pro rata basis (without a corresponding permanent reduction in the aggregate Domestic Revolving Commitments or the aggregate Global Revolving Commitments); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Parent Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Parent Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied “Reinvestment Net Proceeds”), within 360 days after receipt of such Net Proceeds Proceeds, to make Permitted Acquisitions or Investments permitted by Section 6.5 or acquire real property, equipment or other tangible assets to be used in the business of the Parent Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default or Event of Default has occurred and is continuing, then no prepayment or Commitment reduction shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided. Notwithstanding the foregoing, furtherfrom and after the date during any fiscal year of the Parent Borrower on which the aggregate gross proceeds (inclusive of amounts of the type described in the first parenthetical of Section 6.6(d)) from Dispositions pursuant to Section 6.6(d) received during such fiscal year exceed 15% of Total Consolidated Assets, that the Borrower may use an amount equal to a portion of such Net Proceeds from a each subsequent Prepayment Event described in clause occurring during such fiscal year resulting from Dispositions pursuant to Section 6.6(d) (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such and a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the ratable amount of such Net Proceeds and (y) from any Prepayment Event that first causes the aforementioned 15% threshold to be exceeded, which ratable amount shall be determined by reference to a fraction, the numerator of which is shall be the outstanding principal amount portion of the gross proceeds from such Permitted Pari Passu Refinancing Debt Prepayment Event representing the excess above such 15% threshold and the denominator of which is the sum of shall be the aggregate outstanding principal gross proceeds from such Prepayment Event) may not be treated as Reinvestment Net Proceeds.
(c) If on any Determination Date relating to the Global Revolving Facility, the Total Global Exposure exceeds the total Global Revolving Commitments by more than $500,000, the Parent Borrower shall, without notice or demand, within three Business Days after such Determination Date, prepay (or cause the relevant Foreign Subsidiary Borrower to prepay) the Borrowings of Global Revolving Loans (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.5(j)) in an aggregate amount such that, after giving effect thereto, the Total Global Exposure does not exceed the total Global Revolving Commitments. If on any Determination Date relating to the Domestic Revolving Facility, the Total Domestic Exposure exceeds the total Domestic Revolving Commitments, the Parent Borrower shall, without notice or demand, within three Business Days after such Determination Date, prepay (or cause the relevant Foreign Subsidiary Borrower to prepay) the Borrowings of Term Domestic Revolving Loans and or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.5(j)) in an aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtthat, after giving effect thereto, the Total Domestic Exposure does not exceed the total Domestic Revolving Commitments.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy promptly thereafter) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or 11:00 a.m., London time, as applicable), three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Domestic Revolving Commitments or the Global Revolving Commitments as contemplated by Section 2.072.9, then such notice of prepayment may be revoked (or the date specified therein extended) if such notice of termination is revoked (or the date specified therein extended) in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.9. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.022.2, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Prepayment of Loans. (a) The Borrower Except as otherwise provided in any Incremental Assumption Agreement with respect to Incremental Term Loans, the Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of the requirements of this SectionBorrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(d).
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower The Borrowers shall within one Business Day apply all Net Proceeds promptly upon receipt thereof to prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent Term Loans in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
paragraphs (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (bd) of Section 2.10. Notwithstanding the definition of the term “Prepayment Event”)foregoing, the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, other than in the case of any event Net Proceeds of a sale or disposition of a Mortgaged Vessel described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsSection 6.17(iv)(x), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower Borrowers may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in pursuant to clause (a) or (b(a) of the definition of the term “Prepayment Event” thereof to prepay or repurchase any Permitted Pari Passu Refinancing Debt Senior Secured Notes to the extent that any applicable Senior Secured Notes Indenture requires the documentation governing Borrowers to prepay or make an offer to purchase such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof Senior Secured Notes with the proceeds of such Prepayment EventAsset Sale, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted the Pari Passu Refinancing Debt Senior Secured Notes and with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the aggregate outstanding principal amount of such Pari Passu Senior Secured Notes and the outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtLoans.
(c) [Reserved].
(d) Following In the end event and on such occasion that the total Revolving Facility Credit Exposure of each Fiscal Year, commencing with any Class exceeds the Fiscal Year ending December 31, 2016 but solely with respect to that portion total Revolving Facility Commitments of such Fiscal Year during which any Term Loans Class, the Borrowers shall prepay Revolving Facility Borrowings of such Class (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Borrower shall prepay Term Borrowings Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)excess.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event and on such occasion as the Revolving L/C Exposure exceeds the Letter of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstandingCredit Sublimit, the Borrower Borrowers shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided deposit cash collateral in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to an account with the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (aSection 2.05(j) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentexcess.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.15.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentAvailability is less than zero, the Borrower Borrowers shall within one Business Day prepay the Revolving Borrowings (or, if no such Borrowings are outstanding, deposit Loans and LC Exposure or cash collateral in an account with the Administrative Agent collateralize LC Exposure in accordance with Section 2.04(i2.05(h)) , as applicable in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event Event, the Borrowers shall, immediately after such Net Proceeds are received by any Loan Party, prepay the Obligations and cash collateralize LC Exposure as set forth in Section 2.10(d) below in an aggregate amount equal to (including by x) in the Administrative Agent as loss payee in respect case of any Prepayment Event a prepayment event described in clause (bc) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days and only during an Availability Trigger Period or after the day occurrence and continuance of an Event of Default, 50% of such Net Proceeds are receivedand (y) in the case of all other Prepayment Events, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, Borrowers shall deliver to the Administrative Agent Lender a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, (or replace or rebuild) equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default or Event of Default has occurred and is continuing, then either (i) so long as an Availability Trigger Period is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if a Availability Trigger Period is in effect, then, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied to acquire, if applicablereplace or rebuild such assets by (A) except the Borrowers, then such Net Proceeds shall be applied by the Lender to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Revolving Commitment) and upon such application, the Lender shall establish a Reserve against the Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not a Borrower, such Net Proceeds shall be deposited in a cash collateral account, and in the case of either (A) or (B), thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) The Borrowers shall request a Revolving Borrowing (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Lender shall make such Revolving Borrowing or the Lender shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against the Revolving Borrowing, the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Revolving Loan; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of all such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered amounts prepaid pursuant to Section 5.01(a) with respect 2.10(c), shall be applied, first to the Fiscal Year for which Excess Cash Flow is being calculated (and in prepay any event not later than the last day on which such financial statements Protective Advances that may be delivered outstanding, and second to prepay the Revolving Loans without a corresponding reduction in compliance with such Section)the Revolving Commitment and to cash collateralize outstanding LC Exposure.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, The Borrowers shall notify the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment dateor through Electronic System, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would if arrangements for doing so have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained approved by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand deliveryLender, e-mail or facsimile) of any prepayment hereunder not later than 10:00 a.m., Denver, Colorado time, (iA) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, Borrowing three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, and (iiB) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, a Base Rate Borrowing on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments Commitment as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing2.08. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.12 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.15.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (Servicesource International, Inc.), Revolving Loan Credit Agreement
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty (except as set forth in clause (f) of this Section 2.09), subject to the requirements of this SectionSection 2.14.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after on the day such Net Proceeds are received (or, in the case of a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”, within three Business Days after such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries or to enter into a Permitted Acquisition or Permitted Foreign Acquisition and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsassets or to make a Permitted Acquisition or Permitted Foreign Acquisition), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(dc) Following the end of the four consecutive fiscal quarter period ending June 30 of each Fiscal Yearyear, but commencing with the Fiscal Year four consecutive fiscal quarter period ending December 31June 30, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2014, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Yearfour consecutive fiscal quarter period; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Yearfour consecutive fiscal quarter period, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements for such fiscal quarter ending June 30 are delivered pursuant to Section 5.01(a5.01(b) with respect to the Fiscal Year four consecutive fiscal quarter period ending June 30 for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A B-1 Term Borrowings and Tranche B B-2 Term Borrowings (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, ) pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail facsimile or facsimileother electronic imaging) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term such Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail facsimile or facsimileother electronic imaging) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gf) All (i) prepayments of (x) Tranche B B-1 Term Borrowings effected on or prior to the six-month anniversary of the Effective Date and (y) Tranche B-2 Term Borrowings effected on or prior to the one-year anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction Transaction, and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to (x) in the case of Tranche B-1 Term Borrowings, the six-month anniversary of the Effective Date and (y) in the case of Tranche B-2 Term Borrowings, the one-year anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term applicable Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, prepaid in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, modification in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with another transaction not permitted by this Agreement (i) an acquisition as determined prior to giving effect to any amendment, amendment and restatement or other modification of this Agreement being adopted in connection with such transaction); provided that the Borrower or the sale primary purpose of all or substantially all the Borrower’s consolidated assets or (ii) an IPOsuch transaction is not to effect a Repricing Transaction. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term LendersLenders of the applicable Class, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this Section.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate total Revolving Exposure exceeds the lesser of (A) the aggregate Commitments or (B) the Aggregate Revolving CommitmentBorrowing Base, including as a result of any currency exchange fluctuation, the Borrower Borrowers shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event Event, the Borrowers shall, immediately after such Net Proceeds are received by any Loan Party, prepay the Obligations as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds, provided that, (including by 1) in the Administrative Agent as loss payee in respect case of any Prepayment Event event described in clause (ba) of the definition of the term “Prepayment Event”), ,” no prepayment under this Section shall be required unless and until the Borrower shall, within three Business Days aggregate amount of proceeds from all such Prepayment Events after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, Effective Date exceeds $1,000,000 and (2) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds (which period will be extended to up to a date not later than 360 days after the receipt of such Net Proceeds if within such 180 day period the applicable Loan Party enters into a binding contract to acquire, replace or rebuild), to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Specified Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied by (A) the Borrowers, if applicablethen such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Commitment) except and upon such application, the Administrative Agent shall establish a Reserve against the Aggregate Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not a Borrower, then such Net Proceeds shall be deposited in a cash collateral account maintained with the Administrative Collateral Agent and in either case, thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) the Borrower Representative shall request a Revolving Loan (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Lenders shall make such Revolving Loan or the Administrative Collateral Agent shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against the Revolving Loan, the Reserve established with respect to such proceeds shall be reduced by the amount of such Revolving Loan; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter 360 day period, if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsapplicable), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances and Overadvances that may be outstanding, pro rata, and second to prepay the Revolving Loans (including Swing Line Loans) without a corresponding reduction in the Commitment and, if full cash dominion is in effect pursuant to Section 7.3 of the U.S. Security Agreement and Section 7.3 of the Canadian Security Agreement or if an Event of Default has occurred and is continuing, to cash collateralize outstanding LC Exposure. Notwithstanding the foregoing, if any payment pursuant to this Section would require a payment on a day that is not the last day of an Interest Period and if such payment would otherwise require the payment of break funding amounts pursuant to Section 2.16, then (so long as no Event of Default has then occurred and is continuing) the Borrowers may deposit such required payments in a cash collateral account with the Administrative Collateral Agent, subject to the sole dominion and control of the Administrative Collateral Agent and make the required payment at the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)appropriate Interest Period.
(e) Prior to any optional or mandatory The Borrower Representative shall notify the Disbursement Agent (and in the case of prepayment of Borrowings under this Sectiona Swingline Loan, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fapplicable Swingline Lender) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand deliveryfacsimile or, e-mail or facsimile) at least one Business Day prior to in the required prepayment date, to decline all or any portion case of any prepayment of its Tranche A Term Canadian Swingline Loans and US Swingline Loans, Tranche B Term Loans or Incremental Term Loans by transmission of any a pdf file containing such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimilenotice) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing or CDOR Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Revolving Borrowing, a Canadian Prime Revolving Borrowing or an Overnight LIBO Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Disbursement Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this SectionAgreement, including, without limitation, Section 3.06.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Prepayment/Reduction Event, then, immediately after such Net Proceeds are received, the Borrower shall prepay Revolving Borrowings in an amount equal to such Net Proceeds; provided, however, (including by the Administrative Agent as loss payee i) with respect to Net Proceeds received in respect of any Prepayment a Prepayment/Reduction Event described in clause (b) of the definition of the term “Prepayment Event”)thereof, the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that so long as no Default has occurred and is continuing, then no prepayment the Borrower shall not be required pursuant to this paragraph use such Net Proceeds to prepay the Loans if (A) on or prior to receipt of such proceeds the Borrower shall have notified the Administrative Agent in respect writing that it intends to use such proceeds to replace or restore any property within 180 days of such Prepayment/Reduction Event and (B) the Borrower shall have replaced or restored such property within such 180-day period (or, in the event that such property is incapable of being replaced or restored during such 180-day period, the Borrower shall have commenced the replacement or restoration of such property during such 180-day period) and (ii) any Net Proceeds in respect of a Prepayment/Reduction Event applied to the repayment of Revolving Borrowings shall first be applied to the repayment of all outstanding ABR Loans and then to the repayment of outstanding Eurodollar Loans, provided that, so long as no Event of Default shall have occurred and be continuing, any Net Proceeds required pursuant to this Section 2.08(b) to be applied in the repayment of any Eurodollar Loan on a day that is not the last day of the Interest Period applicable to such event (or Eurodollar Loan shall be deposited in the portion Cash Collateral Account and held therein until the last day of such Interest Period and applied, and the Borrower hereby irrevocably instructs the Administrative Agent to apply, such Net Proceeds specified to the repayment of such Eurodollar Loan.
(c) If as of any date the Aggregate Revolving Exposure shall exceed the Revolving Commitments, then in such certificate, if applicable) except event the Borrower shall immediately prepay the Revolving Loans by an amount necessary to the extent of eliminate any such Net Proceeds that excess (and if the Revolving Loans have not been so applied by paid in full and the end Letter of such 360-day period (or within a period Credit Exposure of 180 days thereafter if by the end of such initial 360-day period all Lenders is greater than zero, the Borrower or one or more Restricted Subsidiaries shall have entered deposit into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in the Cash Collateral Account an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion 105% of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtexcess).
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment partial reduction or termination of Term the Revolving Commitments, then (i) at or prior to the date of such reduction or termination, the Administrative Agent shall notify the Borrower and the applicable Lenders of the sum of the Revolving Exposures after giving effect thereto and (ii) if such sum would exceed the total Revolving Commitments after giving effect to such reduction or termination, then the Borrower shall, on the date of such reduction or termination, prepay Revolving Borrowings in respect an amount sufficient to eliminate such excess; provided, that if on the date of any Prepayment Event made at such a time when Term Borrowings reduction of more the Aggregate Revolving Commitment, the Aggregate Revolving Exposure exceeds the aggregate Revolving Commitments of all of the Lenders after giving effect to such reduction and, if the Revolving Loans have been paid in full and the Letter of Credit Exposure of all Lenders is greater than one Class remain outstandingzero, the Borrower shall select Term Borrowings to be prepaid so that deposit into the aggregate Cash Collateral Account an amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to in cash which would cause the extent provided balance on deposit in the Incremental Facility Amendment for any Class Cash Collateral Account to equal the Letter of Incremental Term Loans, the Borrowings Credit Exposure of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerLenders.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid andprepaid, in the case of a mandatory prepaymentprovided that, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.06(d), then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.06(d). Promptly following receipt of any such noticenotice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing under Section 2.08(a) shall be in an amount that would be permitted in the case integral multiple of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment$100,000 and not less than $500,000. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.123.01.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Loan (including accrued and unpaid interest thereon) in whole or in part, subject to Sections 2.05(g) and 2.10, in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $2,000,000 or, if less, the amount outstanding, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, not later than the Business Day next after the date on which such Net Proceeds are received, prepay Loans in an aggregate amount equal to 100% of such Net Proceeds (including by or 50% of such Net Proceeds in the case of an Equity Issuance); provided that, in the case of any Asset Disposition, if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer certifying that (i) the Borrower or a Subsidiary intends to apply, or intends to commit in writing to apply, within 6 months after receipt, the Net Proceeds from such Asset Disposition (or a portion thereof as loss payee specified in respect such certificate) in an aggregate amount not to exceed the applicable Reinvestment Limitation Amount, (A) in the case of Net Proceeds from any Prepayment Event Asset Disposition described in clause (a) of the definition of Asset Disposition, to be used in its Permitted Business and (B) in the case of Net Proceeds from any Asset Disposition described in clause (b) of the definition of the term “Prepayment Event”)Asset Disposition, the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt to replace, redevelop or repair the assets subject to the Asset Disposition, and (ii) no Event of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then so long as such Net Proceeds are deposited in a Deposit Account subject to Control Agreement pending such reinvestment, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except in an aggregate amount not to exceed the applicable Reinvestment Limitation Amount; provided further, that to the extent of any such Net Proceeds that have not been so applied reinvested or committed to be reinvested by the end of such 3606-day month period (or within a period of 180 days thereafter if have been committed to such reinvestment in writing by the end of such initial 3606-day month period and have not been so reinvested on or before the end of the 12-month period after such receipt, as such 12-month period may be extended by the Administrative Agent upon showing of good-faith progress towards such reinvestment in accordance with the terms hereof by the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsin the Administrative Agent's reasonable discretion), at which time then a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) applied or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtcommitted.
(dc) Following the end of each Fiscal Year, commencing Commencing with the Fiscal Year ending December 31, 2016 but solely with respect to 2010, for each Fiscal Year ending that portion the Borrower has a Minimum Cash Balance on December 31 of such Fiscal Year during which any Term Loans are outstanding(such calculation of Minimum Cash Balance to be set forth in a certificate of the Borrower delivered to the Administrative Agent, signed by a Financial Officer of the Borrower) equal to or greater than $67,500,000 (less the aggregate amount of all amortization payments pursuant to Section 6.17(b)), the Borrower shall prepay Term Borrowings (without duplication of any amount prepaid from the Net Proceeds of any Asset Disposition pursuant to paragraph (b) above), no later than 105 days after the end of such Fiscal Year, Loans in an aggregate amount equal to the Specified ECF Percentage lesser of (I) 75% of Excess Cash Flow for such Fiscal Year; provided that such Year and (II) the amount shall be reduced dollar-for-dollar by which the Minimum Cash Balance exceeds $67,500,000 (less the aggregate amount of prepayments of Term Borrowings made all amortization payments pursuant to paragraph (aSection 6.17(b)) on December 31 of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings Loans or prepayment pursuant to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender paragraph (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansh) below, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section 2.05 (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined made shall be retained by the Borrowerdistributed pro rata to those Lenders that have not declined such prepayment).
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowinghereunder, not later than 11:00 a.m.2:00 p.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof the Loans to be prepaid andprepaid, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing Loan shall be in an amount that would be permitted in is an integral multiple of $1,000,000 and not less than $2,000,000 or, if less, the case of an advance of a Borrowing of amount outstanding, and not less than the same Type as provided in amount required by this Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing2.05. Prepayments shall be accompanied by accrued interest and other amounts to the extent required by Section 2.12Sections 2.05(g), 2.07 and 2.10.
(f) On the Effective Date, the Borrower shall prepay Loans in an amount equal to the lesser of (I) the Net Proceeds of the Rights Offering and (II) the amount by which the Effective Date Cash Balance exceeds $75,000,000 on the Effective Date.
(g) All (i) prepayments If Borrower makes a voluntary prepayment of Tranche B Term Borrowings effected on or prior any Loan pursuant to the six-month anniversary of the Effective DateSection 2.05(a), in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case Borrower shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower pay to the Administrative Agent, for the account benefit of the Tranche B Term Lenders, a prepayment premium on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “principal amount so prepaid as follows: Relevant Period Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken Premium as a whole) with respect to such amount, the portion Percentage of such Net Proceeds or Excess Cash Flow Principal Amount so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Prepaid
Appears in 2 contracts
Samples: Senior Secured Loan Agreement, Senior Secured Loan Agreement
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate aggregate Revolving Exposure Exposures of all Revolving Lenders exceeds the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three 10 Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, shall prior to the date of the required prepayment, prepayment deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 365 days (or, if the Borrower or any Subsidiary has, prior to the expiration of such 365-day period, entered into a binding commitment to so reinvest such Net Proceeds, within 180 days after the date of such commitment) to be applied within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Event of Default has occurred and is continuing, continuing then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter or, if by the end of applicable, such initial 360180-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsperiod), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fe) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar LIBO Rate Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that that, (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other financings or more events specified thereinasset dispositions, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the prepayment date specified date of prepaymentin such notice) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (PharMerica CORP), Credit Agreement (PharMerica CORP)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without penalty or premium (subject to paragraph (h) of this Section), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentCommitment (including as a result of the occurrence of a Maturity Date with respect to any portion the Aggregate Revolving Commitments when another portion thereof has a later Maturity Date as a result of a Loan Modification Agreement), the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted other Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three 10 Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepaymentprepayment (or, in the case of the disposition of equity holdings in The Xxxxxx Xxxxxxxxxx Company, on or prior to the First Refinancing Facility Agreement Effective Date), deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied (or committed to be applied) within 360 days one year after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used or useful in the business of the Borrower or any of the Restricted Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary), or to consummate any Permitted Acquisition (or other acquisition permitted hereunder) in accordance with the provisions hereof of Persons that will become, or assets that will be held by, the Borrower or any of the Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary) (but not of or by other Persons), and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360one-day year period (or within a period of 180 days thereafter if by the end of such initial 360one-day year period the Borrower or one or more Restricted of the Domestic Subsidiaries or Foreign Subsidiaries, as applicable, shall have entered into an a legally binding agreement with a third party to acquire such real propertyassets, equipment or to consummate such Permitted Acquisition (or other tangible assetsacquisition permitted hereunder), with such Net Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2017, the Borrower shall prepay Term Borrowings of each Class in an aggregate amount equal to (i) the Specified ECF Percentage product of (A) 75% (or, if the Leverage Ratio as of the last day of such fiscal year shall have been less than (x) 4.00 to 1.00 and equal to or greater than 3.25 to 1.00, 50%, (y) 3.25 to 1.00 and equal to or greater than 2.75 to 1.00, 25% and (z) 2.75 to 1.00, 0%) of Excess Cash Flow for such Fiscal Year; provided that fiscal year and (B) the percentage of the aggregate principal amount of the Term Borrowings of all Classes outstanding as of the end of such amount shall be reduced dollar-for-dollar fiscal year represented by the Term Borrowings of such Class outstanding as of the end of such fiscal year, less (ii) the aggregate principal amount of prepayments any voluntary prepayment of Term Borrowings of such Class or (to the extent accompanied by a permanent reduction in the Revolving Commitments) Revolving Loans made by the Borrower pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year (the prepayment otherwise required in respect of Term Borrowings of any Class being credited in an amount equal to the percentage referred to in clause (B) above applicable to such Class applied to the amount of any such prepayment of Revolving Loans), excluding in any event any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three within five (5) Business Days after of the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not no later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) In the event and on each occasion that, as a result of the receipt of any cash proceeds by Holdings, the Borrower or any other Subsidiary in connection with any Disposition of any asset or any other event, Holdings, the Borrower or any other Loan Party would be required by the terms of any Indebtedness that is Subordinated Indebtedness with respect to the Loan Document Obligations (or any Refinancing Indebtedness in respect thereof) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Subordinated Indebtedness (or such Refinancing Indebtedness) or any other Subordinated Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Term Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain are outstanding, the Borrower shall (except as otherwise required by paragraph (d) of this Section or as otherwise provided in the Incremental Facility Agreement with respect to any Incremental Term Facility) select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall (except as otherwise required by paragraph (j) hereof) be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All (i) voluntary prepayments of Tranche B Term Borrowings Loans and all mandatory prepayments of Term Loans required as a result of the incurrence of Indebtedness pursuant to Section 2.11(c) that, in any case are effected on or after the First Refinancing Facility Agreement Effective Date and prior to the six-month anniversary of date that is 6 months after the First Refinancing Facility Agreement Effective Date, in each case Date with the proceeds of a Repricing Transaction and substantially concurrent issuance or incurrence of term loan Indebtedness (ii) amendments, amendments and restatements including any replacement or other modifications incremental term loan facility effected pursuant to an amendment of this Agreement on Agreement) incurred for the primary purpose of repaying, refinancing, substituting or prior to replacing, in whole or in part, the six-month anniversary Term Loans (and, in any event, excluding any repayment, refinancing, substitution or replacement of the Effective Date, the effect Term Loans that may occur in connection with a Change in Control or any other larger strategic transaction of which is a Repricing Transaction, in each case shall Holdings) will be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayment if the Tranche B Term Borrowings so prepaid, effective interest rate or weighted average yield (assuming a 4-year life to maturity) (to be determined in the case reasonable discretion of a transaction described the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, LIBOR floors, upfront or similar fees or original issue discount shared with all lenders or holders thereof, but excluding the effect of any arrangement, structuring, syndication or other fees payable in clause (iconnection therewith that are not shared with all lenders or holders thereof) of this paragraphapplicable to such Indebtedness is, or 1.00% upon satisfaction of certain conditions (other than customary grid-based pricing) could be, less than the effective interest rate for, or weighted average yield of (to be determined in the reasonable discretion of the aggregate principal amount of Tranche B Administrative Agent consistent with generally accepted financial practices, on the same basis as above) the Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPOLoans. Such fee shall be paid by the Borrower to the Administrative Agent, for the account accounts of the Tranche B relevant Term Lenders, on the date of such prepayment.
(hi) Notwithstanding anything to the contrary contained in this Section 2.11, if any Lender shall notify the Administrative Agent at least one Business Day prior to the date of any prepayment pursuant to Section 2.11(c) or 2.11(d) (other than in connection with a refinancing of all Term Loans) that it wishes to decline its share of such prepayments, such share shall be retained by the Borrower. In such case, the scheduled amortization payments required by Section 2.10 with respect to the Term Loans of such Lender shall not be reduced as a result of the relevant prepayment that was declined, and the Borrower shall remain responsible for the payment thereof in accordance with the provisions of Section 2.10.
(j) Notwithstanding any other provisions of this Section 2.102.11 to the contrary, to the extent that any or all of the Net Proceeds received by a Foreign Subsidiary in respect of any event a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are is prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to the United States or distributed to or used for the benefit of extent that Holdings and the Borrower or any applicable Domestic Subsidiary or if the Borrower has have determined in good faith that repatriation of or requirement to repatriate any or all of such amount to the Borrower or any applicable Domestic Subsidiary Net Proceeds would have a material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) cost consequence with respect to such amountNet Proceeds, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 2.11(c) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as (i) the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (Holdings and the Borrower or hereby agreeing to cause the applicable Domestic Subsidiary, Foreign Subsidiary to promptly use commercially reasonable efforts to take all actions reasonably required by the applicable local law to permit such repatriation) or (ii) the Borrower believes in good faith that repatriation of or requirement to repatriate such Net Proceeds would have a material adverse tax cost consequence would result, and with respect to such Net Proceeds; provided that once such the repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law law, the repatriation of or the Borrower determines in good faith requirement to repatriate such repatriation affected Net Proceeds would no longer would not have such a material adverse tax consequencescost consequence or such Net Proceeds are repatriated at the option of Holdings and the Borrower, then an amount equal to such repatriation affected Net Proceeds will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result of the thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of 2.11(c), subject to the Term Loans pursuant to this Section 2.10 reinvestment rights set forth therein, which shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, apply as if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount repatriation of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by were the Borrower rather than such Foreign Subsidiary, less the amount date of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)initial receipt thereof.
Appears in 2 contracts
Samples: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without penalty or premium, subject to the requirements prior written notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate Revolving Exposure exceeds the lesser of (i) the Aggregate Revolving CommitmentCommitment and (ii) the Borrowing Base, the Borrower shall within one Business Day prepay prepay, on demand, the Revolving Borrowings (or, if no such Borrowings are outstanding, deposit Loans and LC Exposure resulting from LC Disbursements and/or Swingline Loans and cash collateral collateralize all other LC Exposure in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i)2.06(j) as applicable in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, promptly and in any event within three (including by the Administrative Agent as loss payee in respect of 3) Business Days (or, (i) for any Prepayment Event event described in clause (bc) of the definition of the term “Prepayment Event”), not later than the Borrower shallfirst Business Day or (ii) if received by any Foreign Subsidiary, within three five (5) Business Days Days) after the day such Net Proceeds are receivedreceived by any Loan Party or Subsidiary, prepay Term Borrowings the Obligations and cash collateralize the LC Exposure as set forth in Section 2.11(e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, (x) if the property or asset that is the subject of such event is subject to a Lien that is, and is permitted pursuant to this Agreement to be, senior to the Liens granted by any Loan Party pursuant to the Loan Documents in favor of the Administrative Agent, then the Borrower may apply the Net Proceeds thereof to any prepayment then required under the terms of the obligations secured by such Lien prior to applying the remainder thereof (if any) in accordance with this Section 2.11(c) and (y) if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within one hundred eighty (180) to be applied within 360 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding Inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Event of Default has occurred and is continuing, then then, so long as a Cash Dominion Activation Period is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except ; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period one hundred eighty (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property180)-day period, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following Until the end payment in full in cash of the Term Loan Facility, on the date that is ten (10) days after the earlier of (i) the date on which the Borrower’s annual audited financial statements for the immediately preceding fiscal year are delivered pursuant to Section 5.01 and (ii) the date on which such annual audited financial statements were required to be delivered pursuant to Section 5.01, in each Fiscal Yearcase, commencing with such annual audited financial statements for the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2023, the Borrower shall prepay the Term Borrowings Loans in an aggregate amount equal to the Specified ECF Percentage 75% of Excess Cash Flow for such Fiscal Year; provided that such amount the immediately preceding fiscal year as set forth in paragraph (e) below. Each Excess Cash Flow prepayment shall be reduced dollar-for-dollar accompanied by a certificate signed by a Financial Officer certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(i) All such amounts prepaid by the aggregate amount Borrower pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances and Overadvances that may be outstanding, pro rata, second to prepay the Term Loans (to be applied to installments of the Term Loans in reverse order of maturity) and third to prepay the Revolving Loans (including Swingline Loans) without a corresponding reduction in the Revolving Commitments, to pay outstanding LC Exposure resulting from LC Disbursements and to cash collateralize all other outstanding LC Exposure. Notwithstanding the foregoing, all prepayments of Term Borrowings required to be made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a2.11(c) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (Net Proceeds of any insurance or condemnation proceeds arising from casualties or losses to cash or Inventory shall be applied, first to prepay any Protective Advances and in any event not later than the last day on which such financial statements Overadvances that may be delivered outstanding, pro rata, second to prepay the Revolving Loans (including Swingline Loans) without a corresponding reduction in compliance with such Sectionthe Revolving Commitments, to pay outstanding LC Exposure resulting from LC Disbursements and to cash collateralize all other outstanding LC Exposure and third to prepay the Term Loans (to be applied to installments of the Term Loans in the reverse order of maturity). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to other Equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined by the Administrative Agent, in its Permitted Discretion.
(eii) Prior to any optional or mandatory prepayment of Borrowings under this Section, All such amounts prepaid by the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fSection 2.11(d) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B the Term Loans or Incremental (to be applied to installments of the Term Loans in the reverse order of any such Class but was so declined shall be retained by the Borrowermaturity).
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimile) or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, of any prepayment hereunder not later than 12:00 noon, Houston, Texas time, (iA) in the case of prepayment of a Eurodollar Term Benchmark Revolving Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed so that such notice is not required prior to by the Administrative Agentoccurrence of the event giving rise to the prepayment pursuant to Section 2.11(c)) before the date of prepayment, (B) in the case of prepayment of an RFR Revolving Borrowing, five (5) Business Days (or such shorter period so that such notice is not required prior to the occurrence of the event giving rise to the prepayment pursuant to Section 2.11(c)) before the date of prepayment, or (iiC) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, on one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 2 contracts
Samples: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (f) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In Except to the extent such excess arises from Protective Advances permitted under Section 2.04 or Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate lesser of (A) the aggregate Revolving CommitmentCommitments and (B) the Borrowing Base, the Borrower Borrowers shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit LC Exposure and/or Swingline Loans or cash collateral collateralize LC Exposure in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.06(j)) , as applicable, in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee at any time that full cash dominion is in respect of any Prepayment Event described in clause (b) effect pursuant to Section 7.3 of the definition of the term “Prepayment Event”)Security Agreement, the Borrower Borrowers shall, within three two (2) Business Days after the day such Net Proceeds are receivedreceived by any Loan Party, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of remit such Net Proceeds; provided thatProceeds to the Collection Account, after which such Net Proceeds shall be applied to the Obligations in accordance with Section 2.10(b).
(d) The Borrower Representative shall notify the Administrative Agent (and, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate prepayment of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fractionSwingline Loan, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(dSwingline Lender) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder not later than 10:00 a.m., California time, (iA) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (iiB) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, a CBFR on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 2 contracts
Samples: Credit Agreement (Farmer Brothers Co), Credit Agreement (Farmer Brothers Co)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each occasion that the Aggregate Borrowers are not in compliance with the Revolving Exposure exceeds the Aggregate Revolving CommitmentLimitations (including following any Revaluation Date), the Borrower Borrowers shall within one Business Day severally prepay the Revolving Borrowings Loans and/or Swingline Loans (or, if no such Borrowings Loans are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)Cash Collateralize outstanding Letters of Credit) of such Borrower(s) in an aggregate amount equal that, after giving effect to such excessprepayments or Cash Collateralization the Borrowers shall be in compliance with the Revolving Exposure Limitations.
(c) In During any Dominion Period or during any time when an Event of Default shall have occurred and be continuing, subject to the Permitted Term Loan Intercreditor Agreement, if any, in the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three Business Days immediately after the day such Net Proceeds are receivedreceived by any Loan Party or any Restricted Subsidiary, prepay Term Borrowings the Obligations and cash collateralize the LC Exposure as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, then, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied to acquire, if applicablereplace or rebuild such assets by (A) except the Borrowers, such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Revolving Commitment) and upon such application, the Administrative Agent shall establish a Reserve against the Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not a Borrower, such Net Proceeds shall be deposited in a cash collateral account, and in the case of either (A) or (B), thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) the Borrower Representative shall request a Borrowing of Revolving Loans (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Revolving Lenders shall make such Borrowing of Revolving Loans or the Administrative Agent shall release funds from the cash collateral account; and
(3) the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Borrowing of Revolving Loans; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-180 day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, further that the Borrower may Borrowers shall not be permitted to make elections to use an amount equal to a portion of such Net Proceeds from a Prepayment Event described to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) with respect to Net Proceeds in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case fiscal year in an aggregate amount not to exceed the product in excess of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt$25,000,000.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal Subject to the Specified ECF Percentage of Excess Cash Flow for Permitted Term Loan Intercreditor Agreement, if any, all such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered amounts pursuant to Section 5.01(a2.11(c) with respect shall be applied, first to the Fiscal Year for which Excess Cash Flow is being calculated (prepay any Protective Advances and in any event not later than the last day on which such financial statements Overadvances that may be delivered outstanding, pro rata, and second to prepay the Revolving Loans (including Swingline Loans) without a corresponding reduction in compliance with such Section)the Revolving Commitments and to cash collateralize outstanding LC Exposure.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, The Borrower Representative shall notify the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender Administrative Agent (and, to the extent provided in the Incremental Facility Amendment for any Class case of Incremental Term Loansprepayment of a Swingline Loan, any Lender that holds Incremental Term Loans of such Classthe Swingline Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder not later than (i) 11:00 a.m., New York time, (A) in the case of prepayment of a Eurodollar LIBOR Borrowing, not later than 11:00 a.m., New York City timeCDOR Borrowing or EURIBOR Borrowing, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (iiB) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Borrowing of Revolving Loans, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing of Revolving Loans shall be in an amount that would be permitted in the case of an advance of a Borrowing of Revolving Loans of the same Type as provided in Section 2.02, except 2.02 and shall be the same currency as necessary to apply fully the required amount Borrowing of a mandatory prepaymentRevolving Loans being repaid. Each prepayment of a Borrowing of Revolving Loans shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendmentsbreak funding payments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Dateif any, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 2 contracts
Samples: Credit Agreement (Urban Outfitters Inc), Credit Agreement (Urban Outfitters Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without penalty or premium (subject to paragraph (h) of this Section), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentCommitment (including as a result of the occurrence of a Maturity Date with respect to any portion the Aggregate Revolving Commitments when another portion thereof has a later Maturity Date as a result of a Loan Modification Agreement), the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted other Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied (or committed to be applied) within 360 days one year after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used or useful in the business of the Borrower or any of the Restricted Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary), or to consummate any Permitted Acquisition (or other acquisition permitted hereunder) in accordance with the provisions hereof of Persons that will become, or assets that will be held by, the Borrower or any of the Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary)(but not of or by other Persons), and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360one-day year period (or within a period of 180 days thereafter if by the end of such initial 360one-day year period the Borrower or one or more Restricted of the Domestic Subsidiaries or Foreign Subsidiaries, as applicable, shall have entered into an a legally binding agreement with a third party to acquire such real propertyassets, equipment or to consummate such Permitted Acquisition (or other tangible assetsacquisition permitted hereunder), with such Net Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2013, the Borrower shall prepay Term Borrowings of each Class in an aggregate amount equal to (i) the Specified ECF Percentage product of (A) 75% (or, if the Leverage Ratio as of the last day of such fiscal year shall have been less than (x) 4.00 to 1.00 and equal to or greater than 3.25 to 1.00, 50%, (y) 3.25 to 1.00 and equal to or greater than 2.75 to 1.00, 25% and (z) 2.75 to 1.00, 0%) of Excess Cash Flow for such Fiscal Year; provided that fiscal year and (B) the percentage of the aggregate principal amount of the Term Borrowings of all Classes outstanding as of the end of such amount shall be reduced dollar-for-dollar fiscal year represented by the Term Borrowings of such Class outstanding as of the end of such fiscal year, less (ii) the aggregate principal amount of prepayments any voluntary prepayment of Term Borrowings of such Class or (to the extent accompanied by a permanent reduction in the Revolving Commitments) Revolving Loans made by the Borrower pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year (the prepayment otherwise required in respect of Term Borrowings of any Class being credited in an amount equal to the percentage referred to in clause (B) above applicable to such Class applied to the amount of any such prepayment of Revolving Loans), excluding in any event any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three within five (5) Business Days after of the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not no later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) In the event and on each occasion that, as a result of the receipt of any cash proceeds by Holdings, the Borrower or any other Subsidiary in connection with any Disposition of any asset or any other event, Holdings, the Borrower or any other Loan Party would be required by the terms of any Indebtedness that is Subordinated Indebtedness with respect to the Loan Document Obligations (or any Refinancing Indebtedness in respect thereof) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Subordinated Indebtedness (or such Refinancing Indebtedness) or any other Subordinated Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Term Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain are outstanding, the Borrower shall (except as otherwise required by paragraph (d) of this Section or as otherwise provided in the Incremental Facility Agreement with respect to any Incremental Term Facility) select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall (except as otherwise required by paragraph (j) hereof) be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All (i) voluntary prepayments of Tranche B Term Borrowings Loans and all mandatory prepayments of Term Loans required as a result of the incurrence of Indebtedness pursuant to Section 2.11(c) that, in any case are effected on or prior to the six-month first anniversary of the Effective Date, in each case Date with the proceeds of a Repricing Transaction and substantially concurrent issuance or incurrence of term loan Indebtedness (ii) amendments, amendments and restatements including any replacement or other modifications incremental term loan facility effected pursuant to an amendment of this Agreement on Agreement) incurred for the primary purpose of repaying, refinancing, substituting or prior to replacing, in whole or in part, the six-month anniversary Term Loans (and, in any event, excluding any repayment, refinancing, substitution or replacement of the Effective Date, the effect Term Loans that may occur in connection with a Change in Control or any other larger strategic transaction of which is a Repricing Transaction, in each case shall Holdings) will be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayment if the Tranche B Term Borrowings so prepaid, effective interest rate or weighted average yield (assuming a 4-year life to maturity) (to be determined in the case reasonable discretion of a transaction described the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, LIBOR floors, upfront or similar fees or original issue discount shared with all lenders or holders thereof, but excluding the effect of any arrangement, structuring, syndication or other fees payable in clause (iconnection therewith that are not shared with all lenders or holders thereof) of this paragraphapplicable to such Indebtedness is, or 1.00% upon satisfaction of certain conditions (other than customary grid-based pricing) could be, less than the effective interest rate for, or weighted average yield of (to be determined in the reasonable discretion of the aggregate principal amount of Tranche B Administrative Agent consistent with generally accepted financial practices, on the same basis as above) the Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPOLoans. Such fee shall be paid by the Borrower to the Administrative Agent, for the account accounts of the Tranche B relevant Term Lenders, on the date of such prepayment.
(hi) Notwithstanding anything to the contrary contained in this Section 2.11, if any Lender shall notify the Administrative Agent at least one Business Day prior to the date of any prepayment pursuant to Section 2.11(c) or 2.11(d) (other than in connection with a refinancing of all Term Loans) that it wishes to decline its share of such prepayments, such share shall be retained by the Borrower. In such case, the scheduled amortization payments required by Section 2.10 with respect to the Term Loans of such Lender shall not be reduced as a result of the relevant prepayment that was declined, and the Borrower shall remain responsible for the payment thereof in accordance with the provisions of Section 2.10.
(j) Notwithstanding any other provisions of this Section 2.102.11 to the contrary, to the extent that any or all of the Net Proceeds received by a Foreign Subsidiary in respect of any event a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are is prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to the United States or distributed to or used for the benefit of extent that Holdings and the Borrower or any applicable Domestic Subsidiary or if the Borrower has have determined in good faith that repatriation of any or all of such amount to the Borrower or any applicable Domestic Subsidiary Net Proceeds would have a material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) cost consequence with respect to such amountNet Proceeds, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 2.11(c) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as (i) the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (Holdings and the Borrower or hereby agreeing to cause the applicable Domestic Subsidiary, Foreign Subsidiary to promptly use commercially reasonable efforts to take all actions reasonably required by the applicable local law to permit such repatriation) or (ii) the Borrower believes in good faith that repatriation of such Net Proceeds would not have a material adverse tax cost consequence would result, and with respect to such Net Proceeds; provided that once such the repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or law, the Borrower determines in good faith repatriation of such repatriation affected Net Proceeds would no longer would not have such a material adverse tax consequencescost consequence or such Net Proceeds are repatriated at the option of Holdings and the Borrower, then an amount equal to such repatriation affected Net Proceeds will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result of the thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of 2.11(c), subject to the Term Loans pursuant to this Section 2.10 reinvestment rights set forth therein, which shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, apply as if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount repatriation of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by were the Borrower rather than such Foreign Subsidiary, less the amount date of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)initial receipt thereof.
Appears in 2 contracts
Samples: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by Event, promptly and in any event not later than the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days Day after the day such Net Proceeds are received, the Borrower shall prepay Term Borrowings and the Revolving Commitments and the unused Tranche A Commitments and Tranche C Commitments shall be automatically and permanently reduced in an aggregate amount (to be applied ratably among the unused Tranche A Commitments, the Tranche A Term Loans, the Tranche B Term Loans, the unused Tranche C Commitments, the Tranche C Term Loans and the Revolving Commitments based on their then respective amounts) equal to (i) in the case of an event described in clause (c) of the definition of "Prepayment Event", 50% of such Net Proceeds and (ii) in the case of an event described in any other clause of the definition of "Prepayment Event", 100% of the amount of such Net Proceeds; provided that. Notwithstanding the foregoing, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days twelve months after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible System assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of that any such Net Proceeds therefrom that have not been so applied by the end of such 360twelve-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)month period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, provided that the Borrower may use an amount equal to a portion of such aggregate Net Proceeds from a Prepayment Event in respect of events described in clause (a) or (b) of the definition of the term “Prepayment Event” Event not required to prepay or repurchase be applied towards prepayments pursuant to this paragraph shall not exceed $50,000,000 during any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum fiscal year of the aggregate outstanding principal amount of Term Loans Borrower and $125,000,000 in the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtaggregate.
(dc) Following the end of each Fiscal Year, commencing with the Fiscal Year fiscal year of the Borrower ending December 31, 2016 but solely with respect to that portion 2001 and following the end of such Fiscal Year during which any Term Loans are outstandingeach subsequent fiscal year, the Borrower shall prepay Term Borrowings and the Revolving Commitments and the unused Tranche A Commitments and Tranche C Commitments shall be automatically and permanently reduced in an aggregate amount (to be applied ratably among the unused Tranche A Commitments, the Tranche A Term Loans, the Tranche B Term Loans, the unused Tranche C Commitments, the Tranche C Term Loans and the Revolving Commitments based on their then respective amounts) equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three third Business Days Day after the date on which financial statements are delivered (or, if earlier, required to be delivered) pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)calculated.
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any (i) all prepayments shall be applied ratably among the unused Tranche A Term Lender and Tranche B Term Lender (andCommitments, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).the
Appears in 2 contracts
Samples: Credit Agreement (Telecorp Communications Inc), Credit Agreement (Telecorp PCS Inc /Va/)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this Section.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate total Revolving Exposure exceeds the lesser of (A) the aggregate Commitments or (B) the Aggregate Revolving CommitmentBorrowing Base, including as a result of any currency exchange fluctuation, the Borrower Borrowers shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event Event, the Borrowers shall, immediately after such Net Proceeds are received by any Loan Party, prepay the Obligations as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds, provided that, (including by 1) in the Administrative Agent as loss payee in respect case of any Prepayment Event event described in clause (ba) of the definition of the term “Prepayment Event”), ,” no prepayment under this Section shall be required unless and until the Borrower shall, within three Business Days aggregate amount of proceeds from all such Prepayment Events after the day such Net Proceeds are receivedEffective Date exceeds $1,000,000, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, (2) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds (which period will be extended to up to a date not later than 360 days after the receipt of such Net Proceeds if within such 180 day period the applicable Loan Party enters into a binding contract to acquire, replace or rebuild), to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Specified Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied by (A) the Borrowers, if applicablethen such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Commitment) except and upon such application, the Administrative Agent shall establish a Reserve against the Aggregate Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not a Borrower, then such Net Proceeds shall be deposited in a cash collateral account maintained with the Administrative Collateral Agent and in either case, thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) the Borrower Representative shall request a Revolving Loan (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Lenders shall make such Revolving Loan or the Administrative Collateral Agent shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against the Revolving Loan, the Reserve established with respect to such proceeds shall be reduced by the amount of such Revolving Loan; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter 360 day period, if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsapplicable), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that and (3) in the Borrower may use an amount equal to a portion case of such Net Proceeds from a Prepayment Event any event described in clause (a) or (bc) of the definition of the term “Prepayment Event” arising from the issuance of any Qualified Equity Interests, if the Borrower Representative shall deliver to prepay the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Net Proceeds to voluntarily redeem or repurchase any Permitted Pari Passu Refinancing Debt 2009 Notes or 2010 Notes or to the prepayment of the Sidel Water Capital Lease, in each case to the extent then permitted pursuant to Section 6.09(b)(xi) hereof and certifying that no Default or Event of Default has occurred and is continuing, then (i) so long as full cash dominion is not in effect, no prepayment shall be required for 3 Business Days pursuant to this paragraph in respect of the Net Proceeds specified in such certificate, or (ii) if full cash dominion is in effect, such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Commitment) or (iii) 3 Business Days after receipt of such Net Proceeds to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment Net Cash Proceeds shall not have then been used to redeem or repurchase thereof with the proceeds of such Prepayment Event2009 Notes or 2010 Notes or to prepay the Sidel Water Capital Lease pursuant to Section 6.09(b)(xi), in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and shall be applied by the Administrative Agent (yother than any portion of Net Proceeds which would cause the aggregate UK Revolving Loans to be reduced below $10,000,000) a fraction, the numerator of which is to reduce the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum balance of the aggregate outstanding principal amount Revolving Loans (without a permanent reduction of Term Loans and the aggregate outstanding principal amount Commitment). For purposes of such Permitted Pari Passu Refinancing Debtthis Section 2.11(c) the 2009 Notes or 2010 Notes shall be deemed to be “redeemed” at the time that a Borrower or Restricted Subsidiary deposits with the trustee under the 2009 Indenture or 2010 Indenture, as applicable, the funds sufficient to redeem the applicable 2009 Notes or 2010 Notes.
(d) Following All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances and Overadvances that may be outstanding, pro rata, and second to prepay the Revolving Loans (including Swing Line Loans) without a corresponding reduction in the Commitment and, if full cash dominion is in effect pursuant to Section 7.3 of the U.S. Security Agreement and Section 7.3 of the Canadian Security Agreement or if an Event of Default has occurred and is continuing, to cash collateralize outstanding LC Exposure. Notwithstanding the foregoing, if any payment pursuant to this Section would require a payment on a day that is not the last day of an Interest Period and if such payment would otherwise require the payment of break funding amounts pursuant to Section 2.16, then (so long as no Event of Default has then occurred and is continuing) the Borrowers may deposit such required payments in a cash collateral account with the Administrative Collateral Agent, subject to the sole dominion and control of the Administrative Collateral Agent and make the required payment at the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)appropriate Interest Period.
(e) Prior to any optional or mandatory The Borrower Representative shall notify the Disbursement Agent (and in the case of prepayment of Borrowings under this Sectiona Swingline Loan, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fapplicable Swingline Lender) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand deliveryfacsimile or, e-mail or facsimile) at least one Business Day prior to in the required prepayment date, to decline all or any portion case of any prepayment of its Tranche A Term Canadian Swingline Loans and US Swingline Loans, Tranche B Term Loans or Incremental Term Loans by transmission of any a pdf file containing such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimilenotice) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing or CDOR Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Revolving Borrowing, a Canadian Prime Revolving Borrowing or an Overnight LIBO Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Disbursement Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Alamosa Delaware, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days shall immediately after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 270 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360270-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2003, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing; provided that any such prepayment of a Term Borrowing shall be applied ratably to any outstanding Xxxxxxx Term Loans, WOW Term Loans and Southwest Term Loans prior to being applied to other Term Loans. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Alamosa Properties Lp), Credit Agreement (Alamosa Properties Lp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments (including as a result of a determination with respect to the Dollar Equivalent of any Borrowing or Letter of Credit made by the Administrative Agent pursuant to Section 1.06), the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Loans (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(i)) in an aggregate amount equal necessary to eliminate such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted other Subsidiary in respect of any Prepayment Event, the Borrower shall, within three Business Days after such Net Proceeds are received (or, in the case of a Prepayment Event described in clause (including by c) of the Administrative Agent as loss payee definition of the term “Prepayment Event”, on the date of such Prepayment Event), prepay Term Borrowings in respect an aggregate amount equal to (i) in the case of any a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), 50% of the Borrower shall, within three Business Days after the day amount of such Net Proceeds are receivedand (ii) in the case of all other Prepayment Events, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior and the Subsidiaries invest (or commit to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause invest) the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 days 15 months after receipt of such Net Proceeds to acquire real property, equipment or other tangible in assets to be used useful in the business of the Borrower or and the Restricted other Subsidiaries and certifying that no Default has occurred and is continuing(including any acquisitions permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect of the such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds specified in such certificateProceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied invested (or committed to be invested) by the end of such 36015-day month period (or if committed to be so invested within a period of 180 days thereafter if by the end of such initial 36015-day period the Borrower or one or more Restricted Subsidiaries shall month period, have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsnot been so invested within 21 months after receipt thereof), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal invested (or committed to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtbe invested).
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2010, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; fiscal year, provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans (and, to the extent the Revolving Commitments are reduced in a corresponding amount, Revolving Loans) made pursuant to paragraph (aSection 2.11(a) of this Section during such Fiscal Year, fiscal year (excluding any all such prepayments to funded with the extent financed from Excluded Sourcesproceeds of other Indebtedness, the issuance of Equity Interests or receipt of capital contributions or the proceeds of any sale or other disposition of assets outside the ordinary course of business). Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)calculated.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Dollar Term Borrowings and, to the extent provided in the Incremental Facility Refinancing Amendment for any Class of Incremental Other Term Loans, the Borrowings of such Class, Class pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; , provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Refinancing Amendment for any Class of Incremental Other Term Loans, any Lender that holds Incremental Other Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Other Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Other Term Loans of any such Class but was so declined shall be retained by the Borrower. Optional prepayments of Term Borrowings shall be allocated among the Classes of Term Borrowings as directed by the Borrower. In the absence of a designation by the Borrower as described in the preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.16.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the applicable Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City timeLocal Time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan denominated in euro or Sterling, not later than 12:00 noon, Local Time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the currency and principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of one some other identifiable event or more events specified thereincondition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to 2.13. At the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement Borrower’s election in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no 2.11, such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to not be applied to reinvestments any Term Loan or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness Revolving Loan of a Foreign Subsidiary)Defaulting Lender and shall be allocated ratably among the relevant non-Defaulting Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Skype S.a r.l.), Credit Agreement (Skype S.a r.l.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of the requirements Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(b), which notice shall be irrevocable except to the extent conditioned on a refinancing of this Sectionall or any portion of the Facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b) In Subject to Section 2.01(b) and (c), in the event and on each occasion that the Aggregate aggregate amount of the Revolving Facility Credit Exposure exceeds the Aggregate lesser of (i) the Revolving CommitmentFacility Commitments and (ii) the Borrowing Base in effect at such time, then the Borrower shall within one Business Day prepay promptly repay outstanding Revolving Borrowings (or, if no such Borrowings are outstanding, deposit Facility Loans and/or cash collateral in an account with the Administrative Agent collateralize Letters of Credit in accordance with Section 2.04(i)2.05(j) in an aggregate amount equal to such excess.
(c) In the event and on each such occasion that any Net Proceeds are received by or on behalf as the Revolving L/C Exposure exceeds the Letter of Credit Sublimit, at the request of the Administrative Agent, the Borrower or any Restricted Subsidiary shall deposit cash collateral in respect of any Prepayment Event (including by an account with the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicableSection 2.05(j) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtexcess.
(d) Following If as a result of changes in currency exchange rates, on any Revaluation Date, (i) the end total Revolving Facility Credit Exposure exceeds the total Revolving Facility Commitments, (ii) the Revolving L/C Exposure exceeds the Letter of each Fiscal Year, commencing with Credit Sublimit or (iii) the Fiscal Year ending December 31, 2016 but solely Revolving L/C Exposure with respect to that portion all Alternate Currency Letters of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this SectionCredit exceeds $25.0 million, the Borrower shall, subject to at the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice request of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date within 5 Business Days of such prepayment.
Revaluation Date (hA) Notwithstanding any other provisions of this Section 2.10prepay Revolving Facility Borrowings, to the extent any Revolving Facility Borrowings or all of the Net Proceeds of any event described in clause (a) Swingline Borrowings or (bB) of deposit cash collateral in an account with the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable Administrative Agent pursuant to Foreign SubsidiariesSection 2.05(j), in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of an aggregate amount such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as exposure does not exceed the applicable local law will not permit repatriation commitment, sublimit or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)set forth above.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Quality Distribution Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% such Net Proceeds (or, in the case of an event described in clause (c) of the amount definition of the term Prepayment Event, 50% of such Net Proceeds); provided PROVIDED that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, (i) to acquire real property, equipment or other tangible assets to be used (including by making a Permitted Acquisition) productive in the Borrower's line of business as conducted on the Effective Date, or ancillary or complementary thereto, or (ii) to the extent such Prepayment Event arises from the sale, transfer or disposition of the Borrower any investment in an Unrestricted Subsidiary, to make investments in one or the Restricted Subsidiaries and more other Unrestricted Subsidiaries, and, in each case, certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31March 26, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2001, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or 55 50 mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class both Classes remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided PROVIDED that any Tranche A Term B Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand deliverytelecopy) by 12:00 noon, e-mail or facsimile) New York City time, at least one two Business Day Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of any Borrowing (other than a Eurodollar Swingline Loan or an optional prepayment of an ABR Borrowing), not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of an optional prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) PROVIDED that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Marketing Services Inc), Credit Agreement (American Media Operations Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this SectionSection 2.11.
(b) In the event and on each such occasion that the Aggregate aggregate Revolving Exposure Exposures exceeds the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Collateral Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three promptly after such Net Proceeds are received by Holdings, the Borrower or such Restricted Subsidiary (and in any event not later than the fifth Business Days Day after the day such Net Proceeds are received), prepay Term Loan Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, that in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”” (other than if the event generating such Net Proceeds is a disposition made pursuant to Section 6.05 (m)), if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, to acquire or replace real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent that the aggregate amount of any such Net Proceeds that have not been so applied or contractually committed in writing by the end of such 360365-day period (or within a period of 180 days thereafter and, if by so contractually committed in writing but not applied prior to the end of such initial 360365-day period period, applied within 180 days of the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire end of such real property, equipment or other tangible assetsperiod), at promptly after which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtProceeds.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2008, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).to:
Appears in 2 contracts
Samples: Credit Agreement (Symbion Inc/Tn), Credit Agreement (NeoSpine Surgery, LLC)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.13), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure sum of the Exposures exceeds the Aggregate Revolving Commitmenttotal Commitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, within ten (including by 10) Business Days after such Net Proceeds are received, prepay Borrowings in an aggregate amount equal to (i) in the Administrative Agent as loss payee in respect case of any Prepayment Event an event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are receivedProceeds, prepay Term Borrowings or (ii) in the case of an aggregate amount equal to 100% event described in clause (c) or (d) of the amount definition of Prepayment Event, 75% of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”" occurring on or prior to the six-month anniversary of the Effective Date (other than the sale, transfer or other disposition of (i) Receivables in connection with a Permitted Receivables Financing, or (ii) other assets of the Borrower or any Subsidiary in connection with the incurrence of Indebtedness in respect of an asset-backed financing entered into with the consent of the Required Lenders), if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or until the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360six-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) month anniversary of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtEffective Date.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.3:00 p.m., New York City time, on the Business Day prior to the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) that, if a notice of optional prepayment of any Loans is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.06, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.06. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.10.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each occasion that the Aggregate Borrowers are not in compliance with the Revolving Exposure exceeds the Aggregate Revolving CommitmentLimitations (including following any Revaluation Date), the U.S. Borrower shall within one Business Day prepay U.S. Revolving Borrowings Loans or, as applicable, the Canadian Borrower shall prepay Canadian Revolving Loans (or, if no such Borrowings Loans are outstanding, deposit the applicable Borrower shall cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)collateralize outstanding Letters of Credit) in an aggregate amount equal that, after giving effect to such excessprepayments or cash collateralization the Borrowers shall be in compliance with the Revolving Exposure Limitations.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three (3) Business Days after the day receipt of such Net Proceeds are receivedby any Loan Party or any Subsidiary, prepay Term Borrowings Obligations as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of the amount of by which all such Net Proceeds; Proceeds received by any Loan Party or any such Subsidiary during the Fiscal Year exceeded $2,500,000. Notwithstanding the foregoing and provided that, in the case no Event of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”Default has occurred and is continuing, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuingLoan Parties, then either (i) so long as a Cash Dominion Period is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect amount of such event (or the portion of such Net Proceeds specified in such certificatecertificate or (ii) if a Cash Dominion Period is in effect, if applicable) except all such Net Proceeds shall be applied by the Administrative Agent to prepay the Obligations as set forth in Section 2.11(d); provided that, in any such case, to the extent of any such Net Proceeds that to be so reinvested have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end All Net Proceeds of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which a U.S. Loan Party or any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph Subsidiary thereof (aother than a Foreign Loan Party) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a2.11(c) with respect shall be applied, first to the Fiscal Year for which Excess Cash Flow is being calculated (prepay any U.S. Protective Advances and in any event not later than the last day on which such financial statements U.S. Overadvances that may be delivered in compliance with such Section)outstanding and any other U.S. Obligations that are then due and payable, pro rata, second to prepay the U.S. Revolving Loans, third to cash collateralize outstanding LC Exposure, fourth to prepay any Canadian Protective Advances and Canadian Overadvances that may be outstanding and any other Foreign Obligations that are then due and payable, pro rata, and fifth to prepay the Canadian Revolving Loans. All Net Proceeds of a Foreign Loan Party or any Subsidiary thereof (other than a U.S. Loan Party) pursuant to Section 2.11(c) shall be applied, first to prepay any Canadian Protective Advances and Canadian Overadvances that may be outstanding and any other Foreign Obligations that are then due and payable, pro rata, second to prepay the Canadian Revolving Loans, and third, to cash collateralize outstanding LC Exposure owing by or for the account of any Foreign Loan Party.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower Representative shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder not later than (i) 10:00 a.m., Chicago time, (A) in the case of prepayment of a Eurodollar Borrowing or CDOR Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (iiB) in the case of prepayment of an ABR Borrowing or a Canadian Prime Rate Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 2 contracts
Samples: Credit Agreement (Standard Motor Products, Inc.), Credit Agreement (Standard Motor Products Inc)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, without premium or penalty (but subject to Section 3.05), in an aggregate principal amount that is an integral multiple of the requirements Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(b), which notice shall be irrevocable except to the extent conditioned on the occurrence of this Sectionone or more events, including, without limitation, a change of control or a refinancing of all or any portion of the Revolving Facility.
(b) In the event and on each occasion that the Aggregate total Revolving Facility Credit Exposure exceeds the Aggregate Revolving Commitmentlesser of (i) the Maximum Credit and (ii) the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii) of the last paragraph of Section 7.05), the Borrower Borrowers shall within one Business Day immediately prepay Revolving Facility Borrowings or Swing Line Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Cash Collateral pursuant to Section 2.04(i)2.16) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that the L/C Obligations exceed (i) the Letter of Credit Sublimit or (ii) the lesser of the Maximum Credit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds are received by from a sale or on behalf other disposition of inventory or receivables outside the Borrower or any Restricted Subsidiary in respect ordinary course of any Prepayment Event (including by the Administrative Agent business as loss payee in respect of any Prepayment Event described specified in clause (biii) of the definition last paragraph of the term “Prepayment Event”Section 7.05), the Borrower shall, within three Business Days after Borrowers shall immediately deposit Cash Collateral pursuant to Section 2.16 in an amount equal to such excess.
(d) In the day event and on each occasion that the Swing Line Loans exceed (i) the Swing Line Sublimit or (ii) the lesser of the Maximum Credit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds are receivedfrom a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii) of the last paragraph of Section 7.05), the Borrowers shall immediately prepay Term Swing Line Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtexcess.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Constellium N.V.), Credit Agreement (Constellium N.V.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (f) of this Section.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that (i) the Aggregate total Revolving Exposure exceeds the Aggregate lesser of (A) the aggregate Revolving CommitmentCommitments or (B) the Borrowing Base, (ii) the total amount of Revolving Loans outstanding exceeds the Revolving Loan Sublimit or (iii) LC Exposure exceeds the LC Sublimit, Borrower shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days promptly after the day such Net Proceeds are receivedreceived by any Loan Party, prepay Term Borrowings the Obligations as set forth in Section 2.11(e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days twelve months after receipt of such Net Proceeds (or, if the Borrower has entered into a binding contract within twelve months after such Prepayment Event to acquire assets useful in its business and/or to repair the affected asset, as applicable, within eighteen months after such Prepayment Event), to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or the portion of ii) if full cash dominion is in effect, then such Net Proceeds specified shall be deposited in a cash collateral account and in either case, thereafter, such certificatefunds shall be made available to the applicable Loan Party as follows:
(1) the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed; and
(2) so long as the conditions set forth in Section 4.02 have been met, if applicable) except the Revolving Lenders shall make such Revolving Loan or the Administrative Agent shall release funds from the cash collateral account; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day twelve month period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyeighteen month period, equipment or other tangible assets)as applicable, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Superior Offshore International Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted other Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Proceeds to acquire (or, in the case of a Prepayment Event referred to in clause (b) of the definition of the term “Prepayment Event”, acquire, repair or restore) real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries other Subsidiaries, or to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of, or a manufacturing facility or distribution facility of) any Person) permitted hereunder, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day 365‑day period (or within a period of 180 90 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted other Subsidiaries shall have entered into an any agreement with a third party to acquire acquire, repair or restore such real propertyassets, equipment or to consummate such Permitted Acquisition or other tangible assetsacquisition, with such Net Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, provided further that (A) to the Borrower may use an amount equal to a portion of extent any such Net Proceeds from shall be received in respect of assets owned by a Prepayment Event described Loan Party, such Net Proceeds may be reinvested only in clause assets owned by a Loan Party or, in the case of a Permitted Acquisition, by any Person that shall become a Subsidiary Loan Party upon the consummation thereof (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent such Net Proceeds shall have resulted from the sale of Equity Interests in one or more Foreign Subsidiaries) and (B) to the extent any such Net Proceeds shall be received in respect of assets owned by a Subsidiary that is not a Loan Party but the documentation governing Equity Interests in which constitute Collateral, such Net Proceeds may be reinvested only in assets owned by a Loan Party (including Equity Interests in Foreign Subsidiaries) or assets owned by a Subsidiary the Equity Interests in which constitute Collateral.
(d) In the event and on each occasion that, as a result of the receipt of any cash proceeds by Holdings, the Borrower or any other Subsidiary in connection with any sale, transfer, lease or other disposition of any asset or any other event, Holdings, the Borrower or any other Loan Party would be required by the terms of any Indebtedness permitted under Section 6.01(a)(iii) or 6.01(a)(xiii) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease any such Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall (i) prepay Term Borrowings or (ii) acquire assets in one or more transactions permitted hereby (whether through Permitted Pari Passu Refinancing Debt requires such a prepayment Acquisitions or repurchase thereof with the proceeds of such Prepayment Eventother acquisitions), in each case in an amount not that would be needed to exceed the product of (x) the amount of eliminate such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)requirement.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, the amounts so allocable to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which Series may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A other Term Loans, Tranche B Term Loans or Borrowings as provided in the applicable Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerFacility Agreement.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days immediately after the day such Net Proceeds are received, prepay Term Borrowings in accordance with paragraph (f) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiary Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied (such Net Proceeds or portion thereof, the "Reinvestment Amount"), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiary Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following In the event there exists any Excess Cash Flow at the end of each Fiscal Year, any fiscal year of the Borrower (commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2006), the Borrower shall prepay Term Borrowings in accordance with paragraph (f) below in an aggregate amount equal to the Specified ECF Percentage product of such Excess Cash Flow for such Fiscal Year; provided that such fiscal year multiplied by the applicable Excess Cash Flow Prepayment Percentage, which amount shall be reduced dollar-for-dollar by computed as of the aggregate amount end of prepayments each such fiscal year of Term Borrowings made pursuant to paragraph (a) the Borrower and set forth in the certificate of this Section during such Fiscal Year, excluding any such prepayments to Financial Officer delivered in connection with the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which audited financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (5.01, and in any event paid not later than the last day on which date of the delivery of such financial statements may be delivered in compliance with such Section)certificate.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionparagraph (a) above, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 12:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 12:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. The amount of Net Proceeds or Excess Cash Flow required to paid pursuant to Sections 2.10(c) and (d) shall be applied (i) first, to repay Term Loans, until the outstanding principal amount of the Term Loans is $0, (ii) second, to the repayment of the outstanding amount of Revolving Loans until such outstanding principal amount is $0 (which repayments shall also constitute the permanent reduction in like amount of the Revolving Commitments by such amount), (iii) third, to cash collateralize the outstanding amount of Letters of Credit (which repayments shall also constitute the permanent reduction in like amount of the Revolving Commitments by such amount), and (iv) fourth, to the extent any amount of such Net Proceeds or Excess Cash Flow then remain after all Loans have been repaid and all Letters of Credit so cash collateralized, the Revolving Commitments shall be permanently reduced by such amount. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section; provided that in the event that, on or prior to the first anniversary of the Restatement Effective Date, the Borrower (i) makes any prepayment of Term Loans in connection with any Repricing Event or (ii) effects any amendment of this Agreement resulting in a Repricing Event, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Term Lenders, (x) in the case of clause (i), a prepayment premium of 1% of the amount of the Term Loan being prepaid and (y) in the case of clause (ii), an amount equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment.
(b) In the event and on each such occasion that the Aggregate aggregate Global Revolving Exposure exceeds Exposures or aggregate U.S. Revolving Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments of such Class, the Borrower shall within one Business Day prepay Revolving Borrowings of such Class or, if applicable, Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior and the Restricted Subsidiaries reinvest (or commit to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause reinvest) the Net Proceeds from such event (or a portion thereof specified thereof) within 12 months (or, in such certificatethe case of a Permitted Sale and Leaseback Transaction, within 6 months) to be applied within 360 days after receipt of such Net Proceeds to acquire real property(or, equipment or other tangible assets to be used in the business of if the Borrower or any Restricted Subsidiary enters into a legally binding commitment to reinvest such Net Proceeds within any applicable 12-month period, within 180 days of the Restricted Subsidiaries date of such legally binding commitment) to acquire, restore, repair or replace assets useful in (or, pursuant to a Permitted Acquisition, to acquire any Person engaged in) its business or any other business not otherwise prohibited by Section 6.03(b) (provided that, in each case, the Borrower has delivered to the Administrative Agent within 15 Business Days after such Net Proceeds are received a certificate of a Financial Officer stating its intention to do so and certifying that no Event of Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) (the “Reinvestment Deferred Amount”) except to the extent of any such Net Proceeds therefrom that have not been so applied reinvested by the end of such 360-day 12 month (or, in the case of a Permitted Sale and Leaseback Transaction, 6 month) period (or within a period of 180 days thereafter or, if by the end of such initial 360-day period the Borrower or one or more any Restricted Subsidiaries shall have entered Subsidiary enters into an agreement with a third party legally binding commitment to acquire reinvest such real propertyNet Proceeds within any applicable 12-month period, equipment or other tangible assetswithin 180 days of the date of such legally binding commitment), at which time a prepayment shall be required in an amount equal to such Net Proceeds the Reinvestment Deferred Amount that have has not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtreinvested.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year first fiscal year ending December 31on or after June 30, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2011, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; fiscal year, provided that (i) such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans made pursuant to paragraph (aSection 2.11(a) of this Section during such Fiscal Yearfiscal year, excluding any (ii) such prepayments prepayment shall be in an aggregate amount equal to 25% of Excess Cash Flow for such fiscal year if the extent financed from Excluded SourcesTotal Leverage Ratio at the end of such fiscal year is less than 4.50 to 1.00 and greater than 3.50 to 1.00, and (iii) no such prepayment shall be required if the Total Leverage Ratio at the end of such fiscal year is less than 3.50 to 1.00. Each prepayment pursuant to this paragraph shall be made on or before the date that is three within five Business Days after of the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 95 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A B Term Borrowings and Loan Borrowings, the Tranche B Euro Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, Class pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A B Lender, Tranche B Euro Term Lender and Tranche B and/or Extended Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A B Term Loans, Tranche B Euro Term Loans, Extended Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A B Term Loans, Tranche B Euro Term Loans, Extended Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by applied to the Borrowerprepayment of Tranche B Term Loans, Tranche B Euro Term Loans, Extended Term Loans and Incremental Term Loans of any Class for which prepayment was not declined on a pro rata basis based on the outstanding amounts thereof.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail telecopy) or facsimile) by telecopy of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or, in the case of a Eurocurrency Borrowing denominated in an Alternative Currency, not later than 11:00 a.m., London time), three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the occurrence effectiveness of one other credit facilities or more events specified thereinthe receipt of the proceeds from the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymentdate) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior Notwithstanding anything to the six-month anniversary contrary set forth in this Agreement (including the penultimate sentence of Section 2.11(f) or 2.18(c)) or any other Loan Document, the Borrower shall have the right at any time and from time to time to prepay Term Loans to the Lenders at a discount to the par value of such Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.11(g), provided that (A) the aggregate amount expended by the Borrower in connection with all Discounted Voluntary Prepayments shall not exceed $550,000,000, (B) on the date of the Effective Date, in each case with the proceeds of a Repricing Transaction Discounted Prepayment Option Notice and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior after giving effect to the six-month anniversary of the Effective DateDiscounted Voluntary Prepayment, the effect of which is a Repricing Transaction, in each case no more than $50,000,000 shall be accompanied by outstanding in Revolving Loans, (C) any Discounted Voluntary Prepayment shall be offered to all Term Lenders on a fee payable pro rata basis, (D) after giving effect to the Tranche B Term Lenders in an amount equal to 1.00% of Discounted Voluntary Prepayment, the aggregate principal amount of the Tranche B all Term Borrowings so prepaid, in the case of a transaction described in clause Loans that are held by Sponsor Affiliated Lenders (iby assignment) of this paragraph, or 1.00shall not exceed 20% of the aggregate unpaid principal amount of Tranche B the Term Borrowings affected by such amendment, amendment Loans then outstanding and restatement or other modification, in the case of a transaction described in clause (iiE) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower deliver to the Administrative Agent, for the account together with each Discounted Prepayment Option Notice, a certificate of a Financial Officer of the Tranche B Term Lenders, on the date Borrower (1) stating that no Event of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause Default under clauses (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary Article VII or Excess Cash Flow attributable to Foreign Subsidiariesunder clauses (h), (i) or (j) (in either case are prohibited or delayed by any applicable local law (including financial assistanceeach case, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to the Borrower) of Article VII has occurred and is continuing or would result from the Discounted Voluntary Prepayment, (2) stating that each of the conditions to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided Discounted Voluntary Prepayment contained in this Section 2.10 but may be retained by 2.11(g) has been satisfied and (3) specifying the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit aggregate principal amount of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated Term Loans to be payable as a result thereof) to the prepayment of the Term Loans prepaid pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)Discounted Voluntary Prepayment.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Loan (including accrued and unpaid interest thereon) in whole or in part, subject to Sections 2.05(g) and 2.10, in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $2,000,000 or, if less, the amount outstanding, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, not later than the Business Day next after the date on which such Net Proceeds are received, prepay Loans in an aggregate amount equal to 100% of such Net Proceeds (including by or 50% of such Net Proceeds in the case of an Equity Issuance); provided that, in the case of any Asset Disposition, if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer certifying that (i) the Borrower or a Subsidiary intends to apply, or intends to commit in writing to apply, within 6 months after receipt, the Net Proceeds from such Asset Disposition (or a portion thereof as loss payee specified in respect such certificate) in an aggregate amount not to exceed the applicable Reinvestment Limitation Amount, (A) in the case of Net Proceeds from any Prepayment Event Asset Disposition described in clause (a) of the definition of Asset Disposition, to be used in its Permitted Business and (B) in the case of Net Proceeds from any Asset Disposition described in clause (b) of the definition of the term “Prepayment Event”)Asset Disposition, the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt to replace, redevelop or repair the assets subject to the Asset Disposition, and (ii) no Event of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then so long as such Net Proceeds are deposited in a Deposit Account subject to Control Agreement pending such reinvestment, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except in an aggregate amount not to exceed the applicable Reinvestment Limitation Amount; provided further, that to the extent of any such Net Proceeds that have not been so applied reinvested or committed to be reinvested by the end of such 3606-day month period (or within a period of 180 days thereafter if have been committed to such reinvestment in writing by the end of such initial 3606-day month period and have not been so reinvested on or before the end of the 12-month period after such receipt, as such 12-month period may be extended by the Administrative Agent upon showing of good-faith progress towards such reinvestment in accordance with the terms hereof by the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsin the Administrative Agent's reasonable discretion), at which time then a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) applied or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtcommitted.
(dc) Following the end of each Fiscal Year, commencing Commencing with the Fiscal Year ending December 31, 2016 but solely with respect to 2010, for each Fiscal Year ending that portion the Borrower has a Minimum Cash Balance on December 31 of such Fiscal Year during which any Term Loans are outstanding(such calculation of Minimum Cash Balance to be set forth in a certificate of the Borrower delivered to the Administrative Agent, signed by a Financial Officer of the Borrower) equal to or greater than $67,500,000 (less the aggregate amount of all amortization payments pursuant to Section 6.17(b)), the Borrower shall prepay Term Borrowings (without duplication of any amount prepaid from the Net Proceeds of any Asset Disposition pursuant to paragraph (b) above), no later than 105 days after the end of such Fiscal Year, Loans in an aggregate amount equal to the Specified ECF Percentage lesser of (I) 75% of Excess Cash Flow for such Fiscal Year; provided that such Year and (II) the amount shall be reduced dollar-for-dollar by which the Minimum Cash Balance exceeds $67,500,000 (less the aggregate amount of prepayments of Term Borrowings made all amortization payments pursuant to paragraph (aSection 6.17(b)) on December 31 of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings Loans pursuant to be prepaid so that the aggregate amount of such this Section 2.05 or prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, pursuant to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender paragraph (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansh) below, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section 2.05 (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined made shall be retained by the Borrowerdistributed pro rata to those Lenders that have not declined such prepayment).
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowinghereunder, not later than 11:00 a.m.2:00 p.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof the Loans to be prepaid andprepaid, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing Loan shall be in an amount that would be permitted in is an integral multiple of $1,000,000 and not less than $2,000,000 or, if less, the case of an advance of a Borrowing of amount outstanding, and not less than the same Type as provided in amount required by this Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing2.05. Prepayments shall be accompanied by accrued interest and other amounts to the extent required by Section 2.12Sections 2.05(g), 2.07 and 2.10.
(f) On the Effective Date, the Borrower shall prepay Loans in an amount equal to the lesser of (I) the Net Proceeds of the Rights Offering and (II) the amount by which the Effective Date Cash Balance exceeds $75,000,000 on the Effective Date.
(g) All (iIf Borrower makes a voluntary prepayment of any Loan pursuant to Section 2.05(a) prepayments or any payment of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case any Loan with the proceeds Net Proceeds of a Repricing Transaction and (ii) amendmentsany Debt Issuance pursuant to Section 2.05(b), amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case Borrower shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower pay to the Administrative Agent, for the account benefit of the Tranche B Term Lenders, a prepayment premium on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10principal amount so prepaid as follows: On or after the Effective Date until October 28, to 2011 3 % On or after October 28, 2011 until October 28, 2012 2 % On or after October 28, 2012 until October 28, 2013 1 % On or after October 28, 2013 until the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Maturity Date 0 %
Appears in 1 contract
Samples: Senior Secured Loan Agreement (Hawaiian Telcom Holdco, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.050)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% such Net Proceeds (or, in the case of a Prepayment Event relating to a Subsidiary that is not a wholly owned Subsidiary, the amount portion of such Net ProceedsProceeds corresponding to the direct or indirect equity interest of Holdings in such Subsidiary); provided that, that,(i) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if (x) the Borrower shall, prior to shall prepay Term Borrowings as set forth above within 30 days after the date of on which the required prepaymentNet Proceeds are received or (y) if, within such 30 days, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if as applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; providedapplied and (ii) in the case of any Prepayment Event relating to issuances of preferred Equity Interests in respect of which cash dividends are payable or which require redemptions or repurchases in cash prior to the Tranche B Maturity Date, furtherHoldings, that the Borrower may use or the applicable Subsidiary will be required to prepay Tranche B Term Loans in an aggregate amount equal to a portion 50% of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtProceeds.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2002, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage (a) 50% of Excess Cash Flow for such Fiscal Year; provided that fiscal year if the Leverage Ratio as of the last day of such amount fiscal year shall be reduced dollar-for-dollar by have been greater than or equal to 3.75:1.00 and (b) 25% of Excess Cash Flow for such fiscal year if the aggregate amount Leverage Ratio as of prepayments the last day of such fiscal year shall have been greater than or equal to 3.25:1.00 and less than 3.75:1.00. Term Borrowings made pursuant will not be required to paragraph (a) be prepaid from Excess Cash Flow for any fiscal year if the Leverage Ratio as of this Section during the last day of such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year shall have been less than 3.25:1.00. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 105 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Kansas City Southern)
Prepayment of Loans. (a) The Borrower shall have the -------------------- right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in accordance with paragraph (e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, (i) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a), (b) or (bd) of the definition of the term “"Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event", in each case in an amount not to exceed the product of (x) the amount 100% of such Net Proceeds and (yii) in the case of a fractionPrepayment Event described in 119 clause (c) of the definition of "Prepayment Event", the numerator of which is the outstanding principal amount 50% of such Permitted Pari Passu Refinancing Debt Net Proceeds. In addition, in the event and on each occasion that the denominator Borrower or any Subsidiary shall sell, lease or otherwise dispose of which is any asset (whether or not such transaction shall constitute a Prepayment Event), if the sum Borrower would be required to prepay or redeem, or to offer to prepay or redeem, any Subordinated Financing as a result of such transaction unless the proceeds of such transaction are applied within a specified period to prepay Term Borrowings (or otherwise reinvested as permitted in accordance with the terms of such Subordinated Financing), then the Borrower shall (unless such proceeds are otherwise reinvested within the specified period in a manner that relieves the Borrower of any such requirement in respect of the aggregate outstanding principal amount Subordinated Financing) prepay Term Borrowings within such specified period to the extent necessary to relieve the Borrower of any such requirement. The Borrower also shall prepay Term Loans Borrowings as and the aggregate outstanding principal amount when required by clauses (iii) and (xii) of such Permitted Pari Passu Refinancing DebtSection 6.01(a).
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31September 27, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to fiscal year in accordance with paragraph (ae) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesbelow. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class both Classes remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term B Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative -------- Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a -------- notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All Whenever any (i) prepayments voluntary prepayment of any Tranche B Term Borrowings effected Loans is made pursuant to Section 2.11(a) or (ii) repayment of any Tranche B Term Loans is required as a result of a declaration pursuant to Article VII, following the occurrence of a Change of Control, that such Tranche B Loans are due and payable, in each case within two years after the Effective Date, the Borrower shall on the date of such prepayment or declaration, as applicable, pay to the Tranche B Lenders a prepayment premium equal to (A) if such prepayment or declaration occurs on or prior to before the six-month first anniversary of the Effective Date, in each case with 2% of the proceeds principal amount of a Repricing Transaction and such Tranche B Term Loans being so prepaid or repaid or (iiB) amendmentsif such prepayment or declaration occurs after the first anniversary of, amendments and restatements or other modifications of this Agreement but on or prior to before the six-month second anniversary of the Effective Date, 1% of the effect principal amount of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the such Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings Loans being so prepaid, in the case of a transaction described in clause (i) of this paragraph, prepaid or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentrepaid.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”, not later than the date of prepayment required by paragraph (d) of this Section), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% such Net Proceeds (or such lesser amount required by paragraph (d) of this Section); provided that, the Borrower may use a portion of such Net Proceeds to prepay, repurchase or redeem Permitted Pari Passu Secured Indebtedness to the extent the Borrower or applicable Restricted Subsidiary is required pursuant to the terms of such Permitted Pari Passu Secured Indebtedness to prepay or make an offer to purchase such Permitted Pari Passu Secured Indebtedness with the Net Proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (i) the amount of such Net ProceedsProceeds multiplied by (ii) a fraction, the numerator of which is the outstanding principal amount of all Permitted Pari Passu Secured Indebtedness with respect to which such a requirement to prepay or make an offer to purchase or redeem exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Pari Passu Secured Indebtedness and the outstanding principal amount of Term Loans (provided that, in the event that the Borrower or applicable Restricted Subsidiary makes an offer to the holders of such Permitted Pari Passu Secured Indebtedness to prepay or purchase such Permitted Pari Passu Secured Indebtedness in an amount permitted under this Section 2.11(c), to the extent that such offer is declined by holders of such Permitted Pari Passu Secured Indebtedness (the principal amount of such Permitted Pari Passu Secured Indebtedness held by such declining holders, the “Declined Amount”), the Borrower or applicable Restricted Subsidiary shall be required to prepay Term Borrowings in an amount equal to such Declined Amount in accordance with Section 2.11(d)) as if the Declined Amount were Net Proceeds received on the final date by which such declining holders were required to give notice of their Declined Amount; provided provided, further, that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible an Authorized Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days one year after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used reinvested in the business of the Borrower or the and its Restricted Subsidiaries and certifying (in the case of reinvestments in assets of Restricted Subsidiaries that no Default has occurred and is continuingare not Loan Parties, in accordance with the applicable limitations of Article VI), or to consummate any Permitted Acquisition permitted hereunder, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360one-day year period (or within a period of 180 days thereafter if by the end of such initial 360one-day year period the Borrower or one or more any of its Restricted Subsidiaries shall have entered into an a binding agreement with a third party to acquire reinvest, or to consummate such real propertyPermitted Acquisition, equipment or other tangible assetswith such Net Proceeds in accordance with the applicable provisions of Article VI), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal .
(d) With respect to each such prepayment required by Section 2.11(c) as a portion result of such Net Proceeds from a Prepayment Event of the type described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to ”, (i) no later than the extent that date of receipt of the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds Net Proceeds of such Prepayment Event, the Borrower will give the Administrative Agent telephonic notice thereof (promptly confirmed in writing), and the Administrative Agent will promptly provide such notice to each case in an amount not Lender of Term Loans, (ii) each such Lender will have the right to exceed the product of (x) the amount refuse any such prepayment by giving written notice of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal refusal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is Administrative Agent within three Business Days after such Lender’s receipt of notice from the date on which financial statements are delivered pursuant to Section 5.01(aAdministrative Agent of such prepayment (such refused amounts, the “Refused Proceeds”), (iii) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (Borrower will make all such prepayments not so refused upon the fifth Business Day after such Lenders receive first notice of repayment from the Administrative Agent, and in any event not later than the last day on which such financial statements Refused Proceeds may be delivered retained by the Borrower (it being understood that if no Term Loans are outstanding at the time the notice referenced in compliance with clause (i) above is required to be delivered, such Sectionprepayment shall be deemed Refused Proceeds without any further action by the Borrower for purposes of this Section 2.11(d)).
(e) In the event and on each occasion that, as a result of the receipt of any cash proceeds by the Borrower or any Restricted Subsidiary in connection with any Disposition of any asset or any other event, the Borrower or any other Loan Party would be required by the terms of any Permitted Junior Lien Indebtedness, Permitted Unsecured Indebtedness or Subordinated Indebtedness to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Term Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the .
(g) The Borrower shall select Term Borrowings to be prepaid so that notify the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender Administrative Agent (and, to the extent provided in the Incremental Facility Amendment for any Class case of Incremental Term Loansprepayment of a Swingline Loan, any Lender that holds Incremental Term Loans of such Classthe Swingline Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail facsimile or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand electronic delivery, e-mail or facsimile) of any repayment, any optional prepayment hereunder and, to the extent practicable (and, in the case of prepayments required pursuant to Section 2.11(c), subject to Section 2.11(d)), any mandatory prepayment under Section 2.10 or 2.11, as applicable, (i) in the case of repayment or prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment repayment or prepayment, (ii) in the case of repayment or prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, one Business Day before the date of repayment or prepayment or (iii) in the case of repayment or prepayment of a Swingline Loan, not later than 2:00 p.m., New York City time, on the date of repayment or prepayment. Each such notice shall be irrevocable and shall specify the repayment or prepayment date, the principal amount of each Borrowing or portion thereof to be repaid or prepaid and, in the case of a mandatory prepayment, to the extent practicable, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments Repayment and prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment2.13.
(h) Notwithstanding the foregoing, in the event that any portion of any Foreign Source Prepayment attributable to any Foreign Subsidiary cannot be made when due other provisions than with the proceeds of this Section 2.10, a dividend from such Foreign Subsidiary (or of a dividend from another Foreign Subsidiary of which the first Foreign Subsidiary is a direct or indirect subsidiary) that would result in a material tax liability to the extent any or all Borrower, then the requirement to make a prepayment with such portion shall be deferred until such time as such prepayment can be made with funds of the Borrower and the Restricted Subsidiaries that are available without resort to such a dividend. “Foreign Source Prepayment” means, for any Foreign Subsidiary, any Net Proceeds of any event described in clause arising from a Prepayment Event under paragraph (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, Event in either case are prohibited or delayed by respect of any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors asset of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days immediately after the day such Net Cash Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds; provided that, in the case of any event a Prepayment Event described in clause (a) or (bc) of the definition of the term “Prepayment Event”, if such Prepayment Event is an IPO and if the Borrower shalldelivers to the Administrative Agent, on or prior to the date of the required prepaymentsuch IPO, deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that (i) no Default has occurred and is continuingcontinuing and (ii) the Borrower or Holdings intends to apply a portion of the Net Cash Proceeds from such IPO (which portion shall be specified in such certificate and shall not exceed 25% of such Net Cash Proceeds), within 365 days after the date of such IPO, for the purposes specified in clause (viii) of Section 6.07(b), then no the amount of the prepayment shall be required pursuant to by this paragraph in respect of such event shall be reduced by the portion of the Net Cash Proceeds therefrom specified in respect such certificate; provided further that, upon the expiration of such event (or 365-day period, if the Borrower and Holdings have not applied the entire amount of such portion of such Net Cash Proceeds for the purposes specified in such certificateclause (viii) of Section 6.07(b), if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time notify the Administrative Agent thereof and a prepayment shall be required in an amount equal under this paragraph to the extent such Net Proceeds that have portion has not been so applied; provided, further, that the Borrower may use an amount equal to a portion of applied during such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtperiod.
(dc) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 3128, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2002, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Yearfiscal year; provided that such the amount of the prepayment required by this paragraph shall be reduced dollar-for-dollar by the aggregate amount equal to 25% (instead of prepayments of Term Borrowings made pursuant to paragraph (a50%) of this Section during Excess Cash Flow for such Fiscal Yearfiscal year if, excluding any at the end of such prepayments fiscal year, the Senior Leverage Ratio is less than or equal to the extent financed from Excluded Sources1.00 to 1.00. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after last day of the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to first fiscal quarter of the Fiscal Year fiscal year following the fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)calculated.
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section; provided that each prepayment of Borrowings of any Class shall be applied to prepay ABR Borrowings of such Class before any other Borrowings of such Class. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between among the Tranche A D Term Borrowings and Tranche B E Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that that, so long as there are any Tranche A D Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term LoansBorrowings outstanding, any Tranche E Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B E Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B E Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by applied to prepay Tranche D Term Borrowings. The rights of the BorrowerTranche E Lenders under this Section 2.11(d) shall not be changed without the written consent of the Tranche E Lenders holding a majority of the outstanding Tranche E Term Loans.
(fe) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, subject to the requirements of this SectionSection 2.16.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall shall, within one Business Day Day, prepay its Revolving Borrowings (or, if no such Revolving Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net ProceedsProceeds (or, (i) with respect to any such Net Proceeds received in respect of the Palm Beach Gardens Facility Sale Leaseback, 50% of the amount of such Net Proceeds and (ii) if the Borrower or any of its Restricted Subsidiaries has incurred Indebtedness that is permitted under Section 6.01 that is secured, on an equal and ratable basis with the Term Loans, by a Lien on the Collateral permitted under Section 6.02, and such Indebtedness is required to be prepaid or redeemed with the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, then by such lesser percentage of such Net Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Proceeds based upon the aggregate principal amount of the Term Loans and such Indebtedness then outstanding) (such Net Proceeds amount, as reduced in accordance with the proviso to this paragraph (c), the “Net Proceeds Prepayment Amount”); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”” (other than the Palm Beach Gardens Facility Sale Leaseback) and so long as no Event of Default under Section 7.01(a), 7.01(b) or, solely with respect to the Borrower, Section 7.01(h) or 7.01(i) has occurred and be continuing, if the Borrower shall, on or prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used reinvested in the business of the Borrower or the its Restricted Subsidiaries and certifying that no Default has occurred and is continuingSubsidiaries, or to enter into an acquisition permitted by this Agreement, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party committed to acquire invest such real property, equipment or other tangible assetsproceeds), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2022, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Yearfiscal year (such amount, as reduced in accordance with the provisos to this paragraph (d), the “ECF Sweep Amount”); provided that such amount shall be reduced on a dollar-for-dollar basis by the aggregate amount of prepayments of Term Borrowings and Revolving Borrowings (but only to the extent accompanied by a permanent reduction of the corresponding Revolving Commitment) made pursuant to paragraph (a) of this Section and the aggregate amount of voluntary prepayments or repurchases of other Indebtedness secured by the Collateral on a pari passu basis to the Liens on the Collateral securing the Obligations, in each case, during such Fiscal Yearfiscal year (and, excluding any at the Borrower’s option (and without deducting such prepayments amounts against the subsequent fiscal year’s prepayment computation pursuant to this paragraph (d)), after the end of such fiscal year but prior to the extent financed from Excluded Sourcesdate on which the prepayment pursuant to Section 2.11(d) for such fiscal year is required to have been made); provided further that, in the case of any Term Loan (or other Indebtedness) prepaid in connection with the purchase thereof by a Purchasing Borrower Party pursuant to Section 9.04(e) at a discount to par (or the below-par purchase or prepayment of any other Indebtedness), the prepayment required pursuant to this Section 2.11(d) shall be reduced, with respect to the prepayment of such Term Loan (or other relevant Indebtedness), only by the actual amount of cash paid to the applicable Lender or Lenders (or other lender(s) or holder(s)) in connection with such purchase. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Notwithstanding any other provisions of Section 2.11(c) or (d), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event by or Excess Cash Flow of a Foreign Subsidiary of the Borrower giving rise to a prepayment pursuant to Section 2.11(c) or (d) (a “Foreign Prepayment Event”) are prohibited or delayed by applicable local law from being repatriated to the Borrower, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or (d), as the case may be, and such amounts may be retained by such Subsidiary, and once the Borrower has determined in good faith that such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, then the amount of such Net Proceeds or Excess Cash Flow will be taken into account as soon as practicable in determining the amount to be applied (net of additional taxes payable or reserved if such amounts were repatriated) to the repayment of the Term Loans pursuant to Section 2.11(c) or (d), as applicable, (B) to the extent that and for so long as the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax or cost consequence with respect to such Net Proceeds or Excess Cash Flow, the amount of Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be retained by such Subsidiary; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would no longer have a material adverse tax consequence with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow shall be taken into account as soon as practicable in determining the amount to be applied (net of additional taxes payable or reserved against if such amounts were repatriated) to the repayment of the Term Loans pursuant to Section 2.11(c) or Section 2.11(d), as applicable, and (C) to the extent that and for so long as the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would give rise to a risk of liability for the directors of such Subsidiary, the Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be retained by such Subsidiary.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is shall be allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, ) pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone in writing (confirmed by via hand delivery, e-mail facsimile or facsimileother electronic imaging) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than (x) an optional prepayment pursuant to paragraph (a) of this SectionSection or (y) a mandatory prepayment triggered by an event described in clause (c) of the definition of the term “Prepayment Event”, neither of which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term such Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent by telephone (confirmed by and, in the case of a prepayment of Swingline Loans, the Swingline Lender) in writing (via hand delivery, e-mail facsimile or facsimileother electronic imaging) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of a prepayment of a Eurodollar Term Benchmark Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of a prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon New York City time, on the date of prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All [Reserved].
(i) prepayments of Tranche B Term Borrowings effected If the Spin-Off has not occurred on or prior to the sixearlier of (x) June 30, 2022 and (y) the date on which Xxxxxx or the Borrower notifies the Administrative Agent in writing that the Spin-month anniversary of Off will not occur, then (i) the Effective Date, in each case with the proceeds of a Repricing Transaction Commitments shall terminate at such time and (ii) amendments, amendments and restatements or the Borrower shall pay all other modifications of this Agreement on or prior to the six-month anniversary amounts payable in respect of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentCommitments.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (ZimVie Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to consummate a Permitted Acquisition or other investment permitted pursuant to this Agreement, or to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to consummate a Permitted Acquisition or other investment permitted pursuant to this Agreement, or to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so appliedapplied (it being understood and agreed that any reinvestment of the type described in this Section 2.10(c), in each case made within 180 days prior to an event described in clause (a) or (b) of the definition of the term “Prepayment Event”, shall be deemed to satisfy the provisions of this Section 2.10(c) with respect to the reinvestment of Net Proceeds from such event); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Term SOFR Borrowing, not later than 11:00 a.m., New York City time, three two Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment[Reserved].
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign SubsidiariesSubsidiary, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds)Section, (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event that and on each occasion that on which the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event that and on each occasion that on which any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings (or Term Loan Commitments shall be reduced if such receipt occurs on or after the Start Date through and including the earlier of the Second Closing Date and December 31, 1999) in an aggregate amount equal to 100% of the amount of such Net Proceeds; Proceeds in accordance with Sections 2.10(f), (g), (h) and (i), provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied event, within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower and the Subsidiaries or all of the Restricted Subsidiaries outstanding capital stock of an entity owning such assets, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings (or Term Loan Commitments shall be reduced if such receipt occurs on or after the Start Date through and including the earlier of the Second Closing Date and December 31, 1999) in an aggregate amount equal to the Specified ECF Percentage excess, if any, of (i) 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by fiscal year over (ii) the aggregate principal amount of prepayments of Term Borrowings made prepaid during such fiscal year pursuant to paragraph Section 2.11(a), in accordance with Sections 2.10(f) and (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesg). Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event that any portion of any mandatory prepayment of Term the Revolving Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstandingon the Start Date or the Second Closing Date is attributable to the PTI Adjustment Amount (to the extent attributable to cash or cash equivalents) and/or the Net Cash Amount, the Borrower shall select Term repay Revolving Borrowings in an aggregate principal amount equal to be prepaid so that the aggregate amount such portion of such prepayment is allocated between Tranche A Term Revolving Borrowings and Tranche B Term Borrowings andwithin one Business Day after the Start Date or the Second Closing Date, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on as applicable.
(f) If the aggregate principal amount of Revolving Borrowings outstanding on the date that is two Business Days after the Closing Date exceeds $35,000,000 then on such date the Borrower will repay Revolving Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) an aggregate principal amount at least one Business Day prior equal to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerexcess.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Alec Holdings Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, promptly and in any event within three four Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% (x) such Net Proceeds or (y) in the case of any event described in clause (c) of the amount definition of the term Prepayment Event, 50% of such Net Proceeds; provided that, . Notwithstanding the foregoing:
(i) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower or a Subsidiary intends to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible or intangible assets to be used or useful in the business of the Borrower or the Restricted Subsidiaries a Subsidiary, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end within 180 days after receipt of such 360-day period Net Proceeds (or within a period of 180 days thereafter or, if by the end of such initial 360-day period the Borrower or one or more Restricted a Subsidiaries shall have entered into an agreement with a third party legally binding commitment within such 180-day period to acquire such real property, equipment or other tangible assetsor intangible assets with such Net Proceeds, within an additional 180 days after such initial 180-day period), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that applied (the Borrower may use an amount equal to a portion further agreeing that at the time of any application of such Net Proceeds from to acquire real property, equipment or other tangible or intangible assets, no Event of Default will have occurred and be continuing);
(ii) if at any time the Borrower or such Subsidiary shall no longer intend to apply any Net Proceeds that are the subject of a certificate delivered under subparagraph (i) to acquire real property, equipment or other tangible assets used or useful in the business of the Borrower or a Subsidiary, such Net Proceeds shall be applied within five Business Days to prepay Term Borrowings; and
(iii) no prepayment shall be required under this paragraph in respect of (A) any Prepayment Event or series of related Prepayment Events described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay resulting in Net Proceeds of less than $100,000 or repurchase any Permitted Pari Passu Refinancing Debt to (B) the extent that first $15,000,000 of Net Proceeds received after the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment date hereof from Prepayment Events or repurchase thereof with series of related Prepayment Events described in clause (a) or (b) of the proceeds definition of such “Prepayment Event, ” that individually result in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt$100,000 or more but less than $5,000,000.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerbelow.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail telecopy) or facsimile) by telecopy of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination or reduction of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked or the effective date of such termination or reduction may be extended if such notice of termination or reduction is revoked or extended, as applicable, in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments All prepayments under this Section shall be accompanied by accrued interest and other amounts to the extent required by Section 2.12Sections 2.12 and 2.15.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, part without premium or penalty but subject to the requirements breakfunding payments required pursuant to Section 2.15 and subject to prior notice in accordance with paragraph (e) of this Section.
(b) In the event and on each such occasion that the Aggregate Revolving total Floor Plan Exposure exceeds the Aggregate Revolving Commitmentaggregate Floor Plan Commitments, the Borrower Borrowers shall within one Business Day jointly and severally unconditionally prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) Floor Plan Exposure in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrowers shall, immediately after such Net Cash Proceeds are received by any Loan Party or Subsidiary, prepay the Obligations in an aggregate amount equal to 100% of such Net Cash Proceeds; provided, that, notwithstanding the foregoing, in the event that a Borrower has not been paid in full for any piece of Eligible Floor Plan Equipment or any other equipment purchased with a Floor Plan Loan on or prior to the date that is sixty (including by 60) days after the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) date of the definition Disposition of the term “Prepayment Event”)such piece of equipment, on such sixtieth (60th) day, the Borrower shall, within three Business Days after Borrowers shall prepay the day such Net Proceeds are received, prepay Term Borrowings Obligations in an aggregate amount equal to 100% of the amount of Net Cash Proceeds that the applicable Borrower would have received if the purchaser of such Net Proceeds; provided thatequipment had paid in full on the date of such Disposition;
(d) [intentionally reserved].
(e) The Borrower Representative shall notify the Administrative Agent (and, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate prepayment of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fractionSwingline Loan, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(dSwingline Lender) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment dateor through Electronic System, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would if arrangements for doing so have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained approved by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand deliveryAgent, e-mail or facsimile) of any prepayment hereunder (i) noon, Chicago time, (A) in the case of prepayment of a Eurodollar Term Benchmark Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment, or (or such shorter period as agreed to by B) in the Administrative Agentcase of prepayment of a CBFR Borrowing, one (1) Business Day before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowinga Swingline Loan, not later than 11:00 a.m., New York City 11:00
a. m. eastern time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving related Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Section
Appears in 1 contract
Samples: Floor Plan First Lien Credit Agreement (Alta Equipment Group Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In Subject to the event provisions of Sections 2.11(e) and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment5.08, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three two Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, (i) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a), (b) or (bd) of the definition of the term “"Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to ", the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the entire amount of such Net Proceeds Proceeds, and (yii) in the case of a fractionPrepayment Event described in clause (c) of the definition of "Prepayment Event", the numerator of which is the outstanding principal amount 50% of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtNet Proceeds.
(dc) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding1998, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Yearfiscal year; provided PROVIDED that such amount prepayments shall be required pursuant to this paragraph (c) only until the outstanding principal amount of Term Loans is reduced dollar-for-dollar by to an amount equal to or less than 50% of the aggregate principal amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to Loans borrowed on the extent financed from Excluded SourcesEffective Date. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(d) If at any time the sum of the total Revolving Exposures exceeds the total Revolving Commitments, the Borrowers shall immediately prepay Revolving Borrowings and Swingline Loans to the extent necessary to eliminate such excess. If any such excess remains after all Revolving Borrowings and Swingline Loans are prepaid, the Borrower shall deposit cash collateral pursuant to Section 2.05(j) in an amount equal to such remaining excess.
(e) Notwithstanding the foregoing provisions of Section 2.11(b):
(i) in the case of a Prepayment Event described in clause (a) or (b) of the definition of "Prepayment Event", the Borrower may, in lieu of prepaying Term Borrowings, prepay Revolving Borrowings (without reducing Revolving Commitments), or, in the case of a Prepayment Event described in clause (a) of the definition of "Prepayment Event" consisting of a disposition by a Foreign Subsidiary, the Borrower may, in lieu of prepaying Term Borrowings, permit such Foreign Subsidiary to retain the Net Proceeds of such disposition; PROVIDED that (A) the Borrower notifies the Administrative Agent that it is exercising such option, specifying the Prepayment Event and the amount of the prepayment, at or prior to the time that the prepayment is required, (B) the Borrower is in compliance with Sections 6.14, 6.15 and 6.16 before and after giving effect to such Prepayment Event and (C) the aggregate principal amount of Revolving Borrowings prepaid in lieu of Term Borrowings and Net Proceeds retained by Foreign Subsidiaries pursuant to this clause (i) shall not exceed $50,000,000 (on a cumulative basis) during the term of this Agreement;
(ii) in the case of a Prepayment Event described in clause (c) of the definition of "Prepayment Event", the Borrower may, at its option, notify the Administrative Agent that the Borrower intends to utilize all or a specified portion of the Net Proceeds of such Prepayment Event to finance a Permitted Acquisition to be consummated within 270 days after such Prepayment Event, in which case the Borrower shall not be required to prepay Term Borrowings pursuant to Section 2.11(b) to the extent of the Net Proceeds so specified; PROVIDED that (A) the Borrower delivers such notice, specifying the Prepayment Event and describing the anticipated Permitted Acquisition in reasonable detail, at or prior to the time of such Prepayment Event, (B) no Default has occurred and is continuing at the time of such Prepayment Event and (C) to the extent such Net Proceeds are not applied to finance such Permitted Acquisition within the 270-day period after such Prepayment Event, the Borrower shall prepay Term Borrowings (at the earlier of (1) expiration of such period, (2) the date of abandonment of such Permitted Acquisition or (3) the date of consummation of such Permitted Acquisition) in an amount equal to such Net Proceeds that are not so applied; and
(iii) in the case of a Prepayment Event described in clause (c) of the definition of "Prepayment Event", if, as of the end of the most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to clause (a) or (b) of Section 5.01 prior to such Prepayment Event, the Leverage Ratio was less than 2.00 to 1.00, then no prepayment pursuant to Section 2.11(b) shall be required in respect of such Prepayment Event.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event ; PROVIDED that each prepayment of Borrowings of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Class shall be applied to prepay ABR Borrowings of more than one such Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for before any Class of Incremental Term Loans, the other Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) PROVIDED that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount such that the remaining amount of such Borrowing not so prepaid would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of the requirements Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(b), which notice shall be irrevocable except to the extent conditioned on a refinancing of this Sectionall or any portion of the Revolving Facility, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b) In Subject to Section 2.01(b) and (c), in the event and on each occasion that the Aggregate aggregate amount of the Revolving Facility Credit Exposure exceeds the Aggregate lesser of (i) the Revolving CommitmentFacility Commitments and (ii) the Borrowing Base in effect at such time, then the Borrower shall within one Business Day prepay promptly repay outstanding Revolving Borrowings (or, if no such Borrowings are outstanding, deposit Facility Loans and/or cash collateral in an account with the Administrative Agent collateralize Letters of Credit in accordance with Section 2.04(i)2.05(j) in an aggregate amount equal to such excess.
(c) In the event and on each such occasion that any Net Proceeds are received by or on behalf as the Revolving L/C Exposure exceeds the Letter of Credit Sublimit, at the request of the Administrative Agent, the Borrower or any Restricted Subsidiary shall deposit cash collateral in respect of any Prepayment Event (including by an account with the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicableSection 2.05(j) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtexcess.
(d) Following If as a result of changes in currency exchange rates, on any Revaluation Date, (i) the end total Revolving Facility Credit Exposure exceeds the total Revolving Facility Commitments, (ii) the Revolving L/C Exposure exceeds the Letter of each Fiscal Year, commencing with Credit Sublimit or (iii) the Fiscal Year ending December 31, 2016 but solely Revolving L/C Exposure with respect to that portion all Alternate Currency Letters of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this SectionCredit exceeds $25.0 million, the Borrower shall, subject to at the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice request of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date within 5 Business Days of such prepayment.
Revaluation Date (hA) Notwithstanding any other provisions of this Section 2.10prepay Revolving Facility Borrowings, to the extent any Revolving Facility Borrowings or all of the Net Proceeds of any event described in clause (a) Swingline Borrowings or (bB) of deposit cash collateral in an account with the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable Administrative Agent pursuant to Foreign SubsidiariesSection 2.05(j), in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of an aggregate amount such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as exposure does not exceed the applicable local law will not permit repatriation commitment, sublimit or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)set forth above.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (f) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate total Revolving Exposure exceeds (the amount of such excess, the “Excess”) the lesser of (A) the Aggregate Revolving CommitmentCommitment or (B) the Borrowing Base, the Borrower shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excessExcess. If such Excess is subsequently reduced and no Default is continuing, any such cash collateral so provided by the Borrower shall be returned to the Borrower (in an amount equal to the lesser of (i) any such reduction in the Excess and (ii) the amount of such cash collateral) within three (3) Business Days after such reduction.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three (3) Business Days after the day such Net Proceeds are receivedreceived by any Loan Party, prepay Term Borrowings the Obligations as set forth in Section 2.11(e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within one hundred eighty (180) to be applied within 360 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, then, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied to acquire, if applicablereplace or rebuild such assets by (A) except the Borrower, such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Revolving Commitments) and upon such application, the Administrative Agent shall establish a Reserve against the Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not the Borrower, such Net Proceeds shall be deposited in a cash collateral account, and in the case of either (A) or (B), thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) the Borrower shall request a Revolving Borrowing (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request that a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Revolving Lenders shall make such Revolving Borrowing or the Administrative Agent shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against the Revolving Borrowing, the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Revolving Borrowing; provided that, to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-one hundred eighty (180) day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, further that the Borrower may shall not be permitted to make elections to use an amount equal to a portion of such Net Proceeds from a Prepayment Event described to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) with respect to Net Proceeds in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case fiscal year in an aggregate amount not to exceed the product in excess of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt$5,000,000.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Intentionally Omitted].
(e) Prior All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any optional or mandatory prepayment of Borrowings under this SectionProtective Advances and Overadvances that may be outstanding, pro rata, second to prepay the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings Term Loans (to be prepaid and shall specify such selection applied to installments of the Term Loans in the notice inverse order of such prepayment delivered pursuant maturity) and third to paragraph prepay the Revolving Loans (fincluding Swingline Loans) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at without a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided corresponding reduction in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of Revolving Commitments and to cash collateralize outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerLC Exposure.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Each voluntary prepayment of a Term Loan Borrowing shall be applied ratably to the Term Loans included in the prepaid Term Loan Borrowing in such order of application as directed by the Borrower. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 1 contract
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, of its Borrowings in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the BC Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(k)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the either Holding Company, either Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the BC Borrower shall, within three Business Days after the day such Net Proceeds are so received, prepay Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds (or, in the amount case of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, 50% of such Net Proceeds); provided PROVIDED that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”Event and subject to Section 6.06, if the BC Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the BC Borrower to the effect that the BC Borrower intends or its Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the BC Borrower or the Restricted Subsidiaries its Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided. In addition, further, in the event and on each occasion that the BC Borrower, the Timber Borrower may use an amount equal to a portion or any Subsidiary shall sell, lease or otherwise dispose of any asset (whether or not such Net Proceeds from transaction shall constitute a Prepayment Event described in clause (a) or (b) of Event), if the definition of the term “Prepayment Event” BC Borrower would be required to prepay or repurchase redeem, or to offer to prepay or redeem, any Permitted Pari Passu Refinancing Subordinated Debt to the extent that the documentation governing or any Senior Unsecured Debt as a result of such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with transaction unless the proceeds of such Prepayment Event, transaction are applied within a specified period to prepay Term Borrowings (or otherwise reinvested as permitted in each case in an amount not to exceed accordance with the product of (x) the amount terms of such Net Proceeds and Subordinated Debt or Senior Unsecured Debt, as applicable), then the BC Borrower shall (y) unless such proceeds are otherwise reinvested within the specified period in a fraction, manner that relieves the numerator BC Borrower of which is the outstanding principal amount of any such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum requirement in respect of the aggregate outstanding principal amount Subordinated Debt or Senior Unsecured Debt, as applicable) prepay Term Borrowings within such specified period to the extent necessary to relieve the BC Borrower of Term Loans and the aggregate outstanding principal amount of any such Permitted Pari Passu Refinancing Debtrequirement.
(d) Following the end of each Fiscal Yearfiscal year of the Borrowers, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2005, the BC Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage excess, if any, of (A) 50% of Excess Cash Flow for such Fiscal Yearfiscal year over (B) the aggregate principal amount of Term Loans optionally prepaid during the period from and including March 31 of the fiscal year for which Excess Cash Flow is being calculated to but excluding March 31 of the fiscal year during which such prepayment is being made (or, if earlier, the date on which such prepayment is made); provided PROVIDED that such (i) the aggregate prepayment amount required by this paragraph in respect of a fiscal year shall be reduced dollar-for-dollar calculated based upon 25% (instead of 50%) 50 of Excess Cash Flow for such fiscal year if the Leverage Ratio is less than or equal to 3.5 to 1.0 on the last day of such fiscal year and (ii) no prepayment shall be required by this paragraph in respect of Excess Cash Flow for any fiscal year if the aggregate amount Leverage Ratio is less than or equal to 3.0 to 1.0 on the last day of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) In the event that any Net Proceeds are received by or on behalf of either Holding Company, either Borrower or any Subsidiary in respect of a Timberland Prepayment Event, the BC Borrower shall prepay Term Borrowings in an aggregate amount equal to 50% of such Net Proceeds so received (it being understood that, for purposes of determining the amount of any prepayment pursuant to this paragraph, such Net Proceeds shall be deemed to include the fair market value of all Non-Cash Timberlands Consideration received by any Loan Party in connection with such Timberland Prepayment Event). Prepayments required pursuant to this paragraph (e) shall be made within three Business Days after the date of receipt of any Net Proceeds that results in the aggregate cumulative amount of such Net Proceeds so received (and in respect of which no prepayment has been made pursuant to this paragraph (e)) exceeding $5,000,000.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the BC Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The BC Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the relevant Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) PROVIDED that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the relevant Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All (i) prepayments of Tranche B D Term Borrowings Loans effected on or prior to the six-month anniversary of the Effective DateDecember 31, in each case 2005 with the proceeds of a Repricing Transaction and substantially concurrent issuance or incurrence of new secured credit facilities (ii) amendments, amendments and restatements excluding a refinancing of all the facilities outstanding under this Agreement in connection with another transaction not permitted by this Agreement (as determined prior to giving effect to any amendment or other modifications waiver of this Agreement on being adopted in connection with such transaction) so long as the primary purpose of such transaction is not to refinance Indebtedness hereunder at an Applicable Rate or prior similar interest rate spread more favorable to the six-month anniversary of the Effective DateBC Borrower), the effect of which is a Repricing Transaction, in each case shall be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayments if the Applicable Rate or similar interest rate spread applicable to such new term loans is or, upon the satisfaction of certain conditions, could be less than the Applicable Rate applicable to the Tranche B D Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so longLoans, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit case may be, as of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)hereof.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Alamosa Delaware, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days shall immediately after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 270 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360270-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2003, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing; provided that any such prepayment of a Term Borrowing shall be applied ratably to any outstanding Xxxxxxx Term Loans and WOW Term Loans prior to being applied to other Term Loans. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section, provided that Canadian B/As may not be optionally prepaid.
(b) In the event and If on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any date any Net Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Parent Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Loan Borrowings in an aggregate amount equal to 100% of the aggregate amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Parent Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Parent Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied “Reinvestment Net Proceeds”), within 360 days after receipt of such Net Proceeds Proceeds, to make Permitted Acquisitions or Investments permitted by Section 6.5 or acquire real property, equipment or other tangible assets to be used in the business of the Parent Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default or Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided. Notwithstanding the foregoing, furtherfrom and after the date during any fiscal year of the Parent Borrower on which the aggregate gross proceeds (inclusive of amounts of the type described in the first parenthetical of Section 6.6(d)) from Dispositions pursuant to Section 6.6(d) received during such fiscal year exceed 10% of Total Consolidated Assets, that the Borrower may use an amount equal to a portion of such Net Proceeds from a each subsequent Prepayment Event described in clause occurring during such fiscal year resulting from Dispositions pursuant to Section 6.6(d) (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such and a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the ratable amount of such Net Proceeds and (y) from any Prepayment Event that first causes the aforementioned 10% threshold to be exceeded, which ratable amount shall be determined by reference to a fraction, the numerator of which is shall be the outstanding principal amount portion of the gross proceeds from such Permitted Pari Passu Refinancing Debt Prepayment Event representing the excess above such 10% threshold and the denominator of which shall be the aggregate gross proceeds from such Prepayment Event) may not be treated as Reinvestment Net Proceeds.
(c) Notwithstanding anything to the contrary in this Agreement, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B-1 Term Loan Borrowings (such amount, the sum “Tranche B-1 Prepayment Amount”), at any time when Tranche A Term Loan Borrowings remain outstanding, the Parent Borrower will, in lieu of applying such amount to the prepayment of Tranche B-1 Term Loan Borrowings on the date of the relevant Prepayment Event, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B-1 Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Parent Borrower, the Administrative Agent will send to each Tranche B-1 Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Parent Borrower to prepay on the date that is ten Business Days after the date of the relevant Prepayment Event, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B-1 Term Loans. Each Tranche B-1 Lender shall return a completed Prepayment Option Notice to the Administrative Agent no later than three Business Days prior to the mandatory prepayment date specified in the applicable Prepayment Option Notice (each a “Mandatory Prepayment Date”), with the failure to so return such notice being deemed to constitute an acceptance of the relevant prepayment. On the Mandatory Prepayment Date, (i) the Parent Borrower shall pay to the relevant Tranche B-1 Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted, or have been deemed to have accepted, prepayment as described above and (ii) the Parent Borrower shall pay to the Tranche A Lenders an amount equal to the portion of the Tranche B-1 Prepayment Amount not accepted by the Tranche B-1 Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loan Borrowings.
(d) If on any Determination Date relating to the Global Revolving Facility, the Total Global Exposure exceeds 105% of the total Global Revolving Commitments, the Parent Borrower shall, without notice or demand, within three Business Days after such Determination Date, prepay (or cause the relevant Foreign Subsidiary Borrower to prepay) Revolving Borrowings in an aggregate amount such that, after giving effect thereto, (i) the Total Global Exposure does not exceed the total Global Revolving Commitments and (ii) the aggregate outstanding principal amount of Term all Canadian Dollar Loans and does not exceed the aggregate outstanding principal amount total Canadian Commitments. If on any Determination Date relating to the Domestic Revolving Facility, the Total Domestic Exposure exceeds 105% of the total Domestic Revolving Commitments, the Parent Borrower shall, without notice or demand, within three Business Days after such Permitted Pari Passu Refinancing Debt.
Determination Date, prepay Revolving Borrowings or Swingline Borrowings (d) Following the end of each Fiscal Yearor, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of if no such Fiscal Year during which any Term Loans Borrowings are outstanding, deposit cash collateral in an account with the Borrower shall prepay Term Borrowings Administrative Agent pursuant to Section 2.5(j)) in an aggregate amount equal to such that, after giving effect thereto, the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by Total Domestic Exposure does not exceed the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)total Domestic Revolving Commitments.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy promptly thereafter) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or 11:00 a.m., London time, as applicable), three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.8, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.8. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.022.2, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(gf) All (i) voluntary prepayments of Tranche B B-1 Term Borrowings Loans effected on or prior to the six-month first anniversary of the Amendment/Restatement Effective Date, in each case Date with the proceeds of a Repricing Transaction substantially concurrent issuance or incurrence of new term loans under this Agreement, as amended, amended and restated, supplemented, waived or otherwise modified from time to time (ii) amendments, amendments and restatements excluding a refinancing of all the Tranche B-1 Term Loans in connection with another transaction not permitted by this Agreement (as determined prior to giving effect to any amendment or other modifications waiver of this Agreement on or prior to the six-month anniversary of the Effective Datebeing adopted in connection with such transaction)), the effect of which is a Repricing Transaction, in each case shall be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayments if the Applicable Rate (or similar interest rate spread) applicable to such new term loans is or, upon the satisfaction of certain conditions, could be less than the Applicable Rate applicable to the Tranche B-1 Term Loans as of the date hereof (as determined by comparing the Applicable Rate in respect of the Tranche B B-1 Term Borrowings so prepaidLoans as of the date hereof to the Applicable Rate (or similar interest spread) in respect of such new term loans, with such comparison including, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amounteach case, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, grid and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiaryrelated definitions).
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(ci) In Prior to the Transition Date, in the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings (other than Tranche R Term Borrowings) in an aggregate amount equal to (A) 100% (or 50%, in the case of Net Proceeds from the sale of Equity Interests in the OnMOS Joint Venture) of such Net Proceeds if such Net Proceeds result from an event described in clause (a) of the definition of the term "Prepayment Event", (B) 100% of such Net Proceeds if such Net Proceeds result from an event (other than the amount issuance of Permitted Convertible Debt) described in clause (b) or (c) of the definition of the term "Prepayment Event" and (C) 75% of such Net Proceeds if such Net Proceeds result from the issuance of Permitted Convertible Debt or an event described in clause (d) of the definition of the term "Prepayment Event".
(ii) After the Transition Date, in the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower shall, within ten Business Days after such Net Proceeds are received, prepay Term Borrowings (other than Tranche R Term Borrowings) in an aggregate amount equal to such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”" (other than the sale, transfer or other disposition of Receivables in connection with a Permitted Receivables Financing), if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings, the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided.
(iii) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, further, that the Borrower may use an amount equal or any Subsidiary in respect of (A) the issuance of the Second Lien Notes, (B) any payment by the China JV of any Indebtedness owing to a portion Holdings, the Borrower or any Subsidiary from the Net Proceeds to the China JV of any Indebtedness incurred by the China JV as contemplated by clause (xiv)(1) of Section 6.01(a) or (C) any Indebtedness incurred by the Borrower as contemplated by clause (xiv)(2) of Section 6.01(a), then, in each such case, the Borrower shall, on the date of receipt of such Net Proceeds from a Prepayment Event described (in clause (a) or (b) the case of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and in respect of the issuance of the Second Lien Notes or the incurrence by the Borrower of Indebtedness referred to in the foregoing clause (yC)) a fractionor within 10 Business Days after such Net Proceeds are received (in the case of any such Net Proceeds in respect of Indebtedness of the China JV), prepay Term Borrowings (other than Tranche R Term Borrowings) in an aggregate amount equal to such Net Proceeds.
(iv) On the Restatement Effective Date, the numerator of which is Borrower shall prepay Term Borrowings (other than Tranche R Term Borrowings) in an aggregate amount equal to the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum Net Proceeds in respect of the aggregate outstanding principal amount issuance of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtFirst Lien Notes, less $25,000,000.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings (other than Tranche R Term Borrowings) in an aggregate amount equal to 75% (or, after the Specified ECF Percentage Transition Date, 50%) of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made (other than Tranche R Term Borrowings) at a time when Term Borrowings (other than Tranche R Term Borrowings) of more than one Class remain outstanding, the Borrower shall select Term Borrowings (other than Tranche R Term Borrowings) to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings, Tranche B Term Borrowings, Tranche C Term Borrowings and Tranche B D Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; , provided that, so long as and to the extent that any Tranche A Term Lender and Borrowing remains outstanding, any Tranche B Term Lender, Tranche C Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any or Tranche D Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A B Term Loans, Tranche B C Term Loans or Incremental Tranche D Term Loans of any such Class Loans, as applicable, pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A B Term Loans, Tranche B C Term Loans or Incremental Tranche D Term Loans of any such Class Loans, as applicable, but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Tranche A
Appears in 1 contract
Samples: Amendment and Restatement Agreement (On Semiconductor Corp)
Prepayment of Loans. (a) The Borrower shall have the -------------------- right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days immediately after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the -------- definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied event, within 360 days after receipt of such Net Proceeds Proceeds, (i) to acquire real property, equipment or other tangible assets to be used in the business of the Borrower and the Subsidiaries or (ii) to purchase Equity Interests of a Person in the Restricted Subsidiaries same or a similar line of business in connection with a Permitted Acquisition, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31October 29, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 75% of Excess Cash Flow for such Fiscal Yearfiscal year; provided that (i) if the Leverage Ratio as of the end of such amount -------- fiscal year is less than 3.50 to 1.00, the Borrower shall be reduced dollar-for-dollar by the prepay Term Borrowings in an aggregate amount equal to 60% of prepayments Excess Cash Flow for such fiscal year and (ii) if the Leverage Ratio as of the end of such fiscal year is less than 3.00 to 1.00, the Borrower shall prepay Term Borrowings made pursuant in an aggregate amount equal to paragraph (a) 50% of this Section during Excess Cash Flow for such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class both Classes remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term B Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative -------- Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., 2:00 p.m. New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.2:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
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Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% such Net Proceeds (or, in the case of an event described in clause (c) of the amount definition of the term Prepayment Event, 50% of such Net Proceeds); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, (i) to acquire real property, equipment or other tangible assets to be used (including by making a Permitted Acquisition) productive in the Borrower's line of business as conducted on the Effective Date, or ancillary or complementary thereto, or (ii) to the extent such Prepayment Event arises from the sale, transfer or disposition of the Borrower any investment in an Unrestricted Subsidiary, to make investments in one or the Restricted Subsidiaries and more other Unrestricted Subsidiaries, and, in each case, certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31March 26, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2001, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings, Tranche B Term Borrowings and Tranche B B-1 Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term B Lender and or Tranche B Term B-1 Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand deliverytelecopy) by 12:00 noon, e-mail or facsimile) New York City time, at least one two Business Day Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Tranche B-1 Term Loans of any such Class Loans, as the case may be, pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Tranche B-1 Term Loans of any such Class but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of any Borrowing (other than a Eurodollar Swingline Loan or an optional prepayment of an ABR Borrowing), not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of an optional prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The A Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing of such Borrower in whole or in part, subject to the requirements of this SectionSection applicable to optional prepayments.
(b) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentCompany or any Subsidiary in respect of any Prepayment Event other than an Equity Issuance, the Borrower shall within one Borrowers shall, not later than the Business Day next following the day on which such Net Proceeds are received by the Company or any Subsidiary, prepay Revolving Term Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)paragraph (e) below) in an aggregate amount equal to such excessNet Proceeds (or the Dollar Equivalent thereof on the payment date in the case of Borrowings in a currency other than that of such Net Proceeds). For purposes of this paragraph (b), Net Proceeds in respect of any Prepayment Event referred to in clause (b) of the definition of "Prepayment Event" shall be deemed received on the later of the date of actual receipt of such Net Proceeds by the Company or any Subsidiary and the date on which the relevant event becomes a Prepayment Event pursuant to clause (b) of such definition.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower Company or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”)Equity Issuance, the Borrower Borrowers shall, within three not later than the Business Days after Day next following the day on which such Net Proceeds are received, prepay Term Borrowings (in accordance with paragraph (e) below) in an aggregate amount equal to 10075% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Company, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding1997, the Borrower Borrowers shall prepay Term Borrowings (in accordance with paragraph (e) below) in an aggregate amount equal to the Specified ECF Percentage (i) 75% of Excess Cash Flow for such Fiscal Year; provided that fiscal year if the Leverage Ratio as of the last day of such amount shall be reduced dollar-for-dollar by fiscal year is greater than 2.0 to 1.0 and (ii) 50% of Excess Cash Flow for such fiscal year if the aggregate amount Leverage Ratio as of prepayments the last day of Term Borrowings made pursuant such fiscal year is equal to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments or less than 2.0 to the extent financed from Excluded Sources1.0. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 105 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the a Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section; PROVIDED that each prepayment of Borrowings of any Class shall be applied to prepay any ABR Borrowings of such Class before any other Borrowings of such Class. If a Borrower fails to make a timely selection of the Borrowing or Borrowings to be prepaid, such prepayment shall be applied, first, to prepay any outstanding ABR Borrowings of the applicable Class and, second, to other Borrowings of such Class in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be prepaid first). In the event of any mandatory optional prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the a Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof Class to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of PROVIDED that each prepayment resulting from a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) Event with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to a German Borrower shall first be applied to prepay the German Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).57
Appears in 1 contract
Samples: Credit Agreement (Sinter Metals Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and If on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any date any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the aggregate amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied "Reinvestment Net Proceeds"), within 360 days after receipt of such Net Proceeds Proceeds, to make Permitted Acquisitions or Investments permitted by Section 6.5 or acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default or Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided. Notwithstanding the foregoing, further, that the Borrower may use an amount equal to a portion of such Net Proceeds may not be designated as "Reinvestment Net Proceeds" on any date if, after giving effect to such designation, the aggregate amount of Net Proceeds so designated from a Prepayment Event described and including the first day of the then-current fiscal year to and including such date would exceed (i) $20,000,000 prior to the date on which the Interim Term Loans have been paid in full or (ii) $50,000,000 thereafter; provided that if the Consolidated Leverage Ratio (as of the last day of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available) is less than 3.00 to 1.0, the amount referred to in clause (aii) or (b) above as of the definition relevant date of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtdesignation shall instead be $100,000,000.
(dc) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the The Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by fiscal year, commencing with the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year ending December 31, excluding any such prepayments to the extent financed from Excluded Sources1999. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.1 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fd) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy promptly thereafter) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.8, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.8. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.022.2, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any BorrowingBorrowing of any Class of Loans, in whole or in part, as selected by the Borrower in its sole discretion and subject to the requirements of this SectionSection 2.11.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess[Reserved].
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, promptly after such Net Proceeds are received by Holdings, the Borrower or such Restricted Subsidiary (including and in any event not later than the fifth Business Day after such Net Proceeds are received), prepay Term Loan Borrowings in an amount equal to 100% of such Net Proceeds; provided that to the extent required by the Administrative Agent as loss payee in respect terms of any Prepayment Event Permitted Debt that is secured by the Collateral on a pari passu basis with the Obligations, the Borrower may, in lieu of prepaying Term Loans with such portion of the Net Proceeds of any prepayment event described in clause (a) or clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day apply a portion of such Net Proceeds are received, prepay (based on the respective principal amounts at such time of (A) such Permitted Debt and (B) the Term Borrowings in an aggregate amount equal Loans) to 100% of the amount of repurchase or redeem such Net ProceedsPermitted Debt; provided that, further that in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, to acquire or replace real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied or contractually committed in writing by the end of such 360365-day period (or within a period of 180 days thereafter and, if by so contractually committed in writing but not applied prior to the end of such initial 360365-day period period, applied within 180 days of the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire end of such real property, equipment or other tangible assetsperiod), at promptly after which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided.
(d) Following the end of each fiscal year of the Borrower, furthercommencing with the fiscal year ending December 31, that 2019, the Borrower may use shall prepay Term Loan Borrowings in an amount equal to a portion the excess of (A) the ECF Percentage of Excess Cash Flow for such year over (B) the sum of (x) the principal amount of Term Loans prepaid pursuant to Section 2.11(a) and the amount expended to prepay Term Loans pursuant to Section 2.11(i), in each case, during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment, (y) the amount expended to prepay Permitted Debt that is secured on a pari passu basis with the Obligations during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment and (z) the amount of Loans under revolving commitments that are repaid during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment, in the case of this clause (z), to the extent accompanied by a reduction in the related commitment and, in the case of each of the foregoing clauses (x), (y) and (z), other than any repayment in connection with a refinancing. Each prepayment pursuant to this paragraph shall be made within five (5) Business Days of the date on which financial statements are delivered pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash Flow is being calculated and the related Compliance Certificate has been delivered pursuant to Section 5.01(c) (and in any event within 95 days after the end of such fiscal year).
(e) Each prepayment of Term Loans pursuant to clauses (a), (c) or (d) of this Section 2.11 (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as selected by the Borrower in its sole discretion in the notice delivered pursuant to clause (f) below, to any Class or Classes of Term Loans, (B) shall be applied to scheduled amortization with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.10(a) and (C) shall be paid to the Class of Lenders in accordance with their respective pro rata share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (f) below. Notwithstanding clause (A) above, prepayments with Net Proceeds from a Prepayment Event any event described in clause (a) or (bc) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt shall be applied to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment Class or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount Classes of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar selected by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded SourcesBorrower. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to shall determine in accordance with the next sentence, select foregoing provisions of this Section 2.11 the Borrowing or Borrowings of each applicable Class to be prepaid and shall specify such selection determination in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower2.11.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, on one (1) Business Day before the date of prepaymentprepayment or (iii) [reserved]. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid, the Class of Loans to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that that, (Ai) [reserved] and (ii) otherwise if a notice of optional prepayment is given in connection with a conditional under this Section 2.11, such notice of termination prepayment may be conditioned upon the effectiveness of other credit facilities or the closing of a refinancing transaction, a sale of all or substantially all of the Revolving Commitments as contemplated by Section 2.07, then assets of the Borrower and its Subsidiaries or a Change of Control and such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans of each applicable Lender included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13 but shall in no event include premium or penalty.
(g) All Each Term Lender may reject all or a portion of its pro rata share of any mandatory prepayment (isuch declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (c) and (d) of this Section 2.11 (except in respect of mandatory prepayments made with Net Proceeds from any event described in clause (c) of Tranche B Term Borrowings effected on or prior the definition of the term “Prepayment Event”) by providing written notice (each, a “Rejection Notice”) to the six-month anniversary Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Lender’s receipt of notice from the Effective Date, in each case with Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B mandatory repayment of Term Borrowings so prepaid, in Loans to be rejected by such Lender. If a Lender of Term Loans fails to deliver a Rejection Notice to the case of a transaction described in clause (i) of this paragraph, Administrative Agent within the time frame specified above or 1.00% of such Rejection Notice fails to specify the aggregate principal amount of Tranche B the Term Borrowings affected by Loans to be rejected, any such amendment, amendment failure will be deemed an acceptance of the total amount of such mandatory prepayment of its Term Loans. Any Declined Proceeds shall be offered to the Lenders of Term Loans not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of each such Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the time and restatement or other modification, in the case manner specified by the Administrative Agent). To the extent such non-declining Lenders of a transaction described in clause (ii) its Term Loans elect to decline their pro rata shares of this paragraph. Notwithstanding the foregoingsuch Declined Proceeds, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee any Declined Proceeds remaining thereafter shall be paid retained by the Borrower (other than Declined Proceeds being applied to repay any Specified Indebtedness pursuant to Section 6.08(b)(viii)) (such remaining Declined Proceeds, the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment“Borrower Retained Prepayment Amounts”).
(h) Notwithstanding any other provisions of this Section 2.102.11, (i) to the extent that any of or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” disposition by a Foreign Subsidiary (“Foreign Disposition”), the Net Proceeds of any casualty event from a Foreign Subsidiary (a “Foreign Casualty Event”) or Excess Cash Flow attributable to Foreign Subsidiaries, in either case Subsidiaries are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amountUnited States, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (the Borrower or hereby agreeing to use commercially reasonable efforts to cause the applicable Domestic Subsidiary, or Foreign Subsidiary to promptly take all actions reasonably required by the Borrower believes in good faith that applicable local law to permit such material adverse tax consequence would resultrepatriation), and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequenceslaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 2.11 to the extent provided herein and (provided ii) to the extent that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case repatriation of any of or all the Net Proceeds of any Foreign Disposition or any Foreign Casualty Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences (as reasonably determined in good faith by the Borrower) with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been affected will not be required to be applied to reinvestments or prepayments repay Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary.
(i) In addition to any prepayment of Term Loans pursuant to paragraph (c) Section 2.11(a), Holdings, the Borrower or any Subsidiary of this Section (the Borrower may at any time prepay Term Loans of any Class of any Lender at such price or prices as may be mutually agreed by Holdings, the Borrower or such Excess Cash Flow would have been so required if it were Net ProceedsSubsidiary, on the one hand, and such Lender, on the other hand (which, for avoidance of doubt, may be a prepayment at a discount to par), pursuant to individually negotiated transactions or offers to prepay that are open to Lenders of Term Loans of any Class(es) selected by Holdings, the Borrower or such Subsidiary so long as (x) immediately after giving effect to any such prepayment pursuant to this Section 2.11(i), no Event of Default has occurred and is continuing, (y) no proceeds of swingline loans or revolving loans under the Existing Credit Agreement are utilized to fund any such prepayment and (z) Holdings, the Borrower applies or such Subsidiary, as applicable, and each Lender whose Term Loans are to be prepaid pursuant to this Section 2.11(i) execute and deliver to the Administrative Agent an amount equal to instrument identifying the amount of Term Loans of each Class of each such Net Proceeds Lender to be so prepaid, the date of such prepayment and the prepayment price therefor. The principal amount of any Term Loans of any Class prepaid pursuant to this paragraph (i) shall reduce remaining scheduled amortization for such Class of Term Loans on a pro rata basis.
(j) Notwithstanding anything in this Agreement to the contrary, in the event that on any date, an outstanding Term Loan of a Lender would otherwise be repaid or Excess Cash Flow prepaid from the proceeds of any new Term Loans to be established on such reinvestments or prepayments as date then, if such Net Proceeds or Excess Cash Flow had been received agreed to by the Borrower rather than and such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied Lender and notified to the repayment Administrative Agent, such outstanding Term Loan of Indebtedness such Lender may be converted on a “cashless” basis into a new Term Loan of a Foreign Subsidiary)the applicable Class being established on such date.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (Select Medical Holdings Corp)
Prepayment of Loans. (a) The Borrower shall have Subject to the right at any time Order and from time to time to prepay any Borrowingthe Intercreditor Agreement, in whole the event that any Net Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in partrespect of an Asset Sale of all or substantially all of the assets of the Company and its Restricted Subsidiaries, the Borrowers shall, within three Business Days after such Net Proceeds are received, prepay Borrowings in an amount equal to 100% of such Net Proceeds subject to the requirements of this SectionSection 2.09(e), with application to the Loan Document Obligations set forth in Section 2.09(d) below; provided that any Net Proceeds in respect of ABL Priority Collateral received by the Borrowers or any Restricted Subsidiary as a result of such Asset Sale shall be applied in accordance with the Order and the Intercreditor Agreement, as applicable.
(b) In Subject to the event Order and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentIntercreditor Agreement, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect other than an Asset Sale of any Prepayment Event described in clause (b) all or substantially all of the definition assets of the term “Prepayment Event”Company and its Restricted Subsidiaries), the Borrower Borrowers shall, within three Business Days after on the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided thatreceived (or, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event,” within three Business Days after such Net Proceeds are received), be deposited into the term Asset Sale Escrow Account and held in the Asset Sale Escrow Account in accordance with clause (c) below; provided that in the case of a Prepayment Event described in clauses (a) or (b) of the definition thereof, any Net Proceeds in respect of ABL Priority Collateral received by the Borrowers or any Restricted Subsidiary as a result of such Prepayment Event shall be applied in accordance with the Order and the Intercreditor Agreement, as applicable.
(c) Net Proceeds received in connection with any Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” to prepay (other than an Asset Sale of all or repurchase any Permitted Pari Passu Refinancing Debt substantially all of the assets of the Company and its Restricted Subsidiaries), and solely to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds in respect of the applicable Asset Sale constitute Term Priority Collateral, shall be deposited into the Asset Sale Escrow Account. Notwithstanding anything to the contrary herein, Net Proceeds of any Asset Sale held in the Asset Sale Escrow Account may be used solely, (i) prior to the occurrence of the Conversion Date, to prepay the Loan Document Obligations (including, for the avoidance of doubt, the Redemption Premium) in full in cash (including, for the avoidance of doubt, on the Maturity Date) and (yii) a fraction, upon the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum occurrence of the aggregate outstanding principal amount of Term Loans and Conversion Date, as directed by the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtBorrowers.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any Any optional or mandatory prepayment of Borrowings under this Section, shall be applied to reduce the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A the Term Lender and Tranche B Term Lender (and, Loans to be repaid on the extent provided in Maturity Date. Notwithstanding the Incremental Facility Amendment for any Class of Incremental Term Loansforegoing, any Lender that holds Incremental Term Loans of such Class) may elect, by written notice to the Administrative Agent by telephone not later than 3:00 p.m. New York City time, two Business Days (confirmed or such shorter period as may be established by hand delivery, e-mail or facsimilethe Administrative Agent) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall first, be offered to Lenders who did not decline its pro rata share of the prepayment who may elect by written notice to the Administrative Agent by not later than 3:00 p.m. New York City time, one Business Day prior to the required prepayment date, to decline all or any portion of such offered prepayment amount and second, if declined by such Lenders, may be retained by the BorrowerBorrowers and shall constitute “Declined Proceeds.” For the avoidance of doubt, a Lender shall be deemed to have accepted any prepayment amount offered under this paragraph (d) is such Lender does not deliver a written notice to the Administrative Agent rejecting such prepayment amount in accordance with this paragraph (d).
(e) In the event that all or any portion of the Loans are repaid or prepaid as a result of (i) [reserved], (ii) a mandatory prepayment pursuant to Section 2.09(a), solely as a result of an Asset Sale of all or substantially all of the assets of the Parent Borrower and its Restricted Subsidiaries (which, for the avoidance of doubt, includes the “Premium” and “Lane Bxxxxx” business lines) or (iii) the repayment of the Loans on the Maturity Date, in each case prior to or without the occurrence of the Conversion Date, such repayments or prepayments will include a premium in an aggregate amount equal to 11.23% of the amount of the loans so prepaid or repaid (the foregoing premium, the “Redemption Premium”).
(f) The Borrower Borrowers shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) in writing of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar by Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Parent Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent as required by Section 2.122.11.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, 2.09 to the extent contrary, if any or all of the Net Proceeds of any event described in prepayment would otherwise be required to be made pursuant to clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable this Section 2.09, solely as it relates to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow generated outside of the United States, so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, long as (x) the applicable local law will not permit repatriation of such Net Proceeds to the United States or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such (y) material adverse tax consequence would result, and once such repatriation of consequences to the Parent Borrower or any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation its Subsidiaries would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after result from such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been affected shall not be required to be applied included in the mandatory prepayments referred to reinvestments or prepayments pursuant to paragraph in such clause (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiaryb).
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing of any Class in whole or in part, subject to the requirements of this Section. Tranche B-1 Term Loans may be optionally prepaid on a pro rata basis or less than pro rata basis with any other Class of Term Loans in the sole discretion of the Borrower.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower Parent or any Restricted Subsidiary in respect of any Prepayment Event following the Amendment No. 2 Effective Date, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, shall (a) prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of Parent to the effect that the Borrower Parent intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower Parent or the Restricted Subsidiaries Subsidiaries, or to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person) permitted hereunder, and certifying that no Default has occurred and is continuing, and (b) in the case of a sale of Term Priority Collateral, deposit all such Net Proceeds in a Proceeds Collateral Account pending such application, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower Parent or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets, or to consummate such Permitted Acquisition or other acquisition, with such Net Proceeds) or at such earlier date as the Parent or applicable Restricted Subsidiary may elect by written notice to the Administrative Agent in accordance with Section 2.09(d), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedapplied (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section does not exceed $15,000,00025,000,000 in any fiscal year, in which case, the Administrative Agent shall cause such funds to be returned to the Borrower); provided, further, that to the Borrower may use an amount equal to a portion of extent any such Net Proceeds shall be received in respect of assets owned by a Loan Party, such Net Proceeds may be reinvested only in assets owned by a Loan Party or, in the case of a Permitted Acquisition or other acquisition, by any Person that shall become a Guarantor upon the consummation thereof (other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent such Net Proceeds shall have resulted from a the sale of Equity Interests in one or more Foreign Subsidiaries). Notwithstanding the foregoing, the Net Proceeds received by Parent or any Restricted Subsidiary in respect of any Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay involving any ABL Priority Collateral (whether in the form of a direct sale, transfer or repurchase other disposition of such ABL Priority Collateral or a sale, transfer or other disposition of Equity Interests in any Permitted Pari Passu Refinancing Debt Restricted Subsidiary owning such ABL Priority Collateral) that secures any obligations in respect of the ABL Credit Agreement at the time such Prepayment Event occurs shall not, solely to the extent that such Net Proceeds are attributable to the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds fair value of such Prepayment EventABL Priority Collateral (net of any related transferred liabilities, in each case as determined reasonably and in good faith by a Financial Officer of Parent), be subject to the requirements of this Section 2.09(b).
(c) In the event that Parent has Excess Cash Flow for any fiscal year of Parent, commencing with the first fiscal year ending January 30, 2016,after the Amendment No. 2 Effective Date, the Borrower shall, not later than 90 days following the end of such fiscal year, prepay Loans (other than Tranche B-1 Term Loans) in an amount not equal to exceed the product excess of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by fiscal year over (y) the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered Loans pursuant to Section 5.01(a2.09(a) during such fiscal year (other than with respect to the Fiscal Year for which Excess Cash Flow is being calculated proceeds of Indebtedness (and in any event not later than excluding Indebtedness under the last day on which such financial statements may be delivered in compliance with such SectionABL Credit Agreement)).
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any from a Prepayment Event under clause (a) or (b) of the definition thereof made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, among the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the relevant Incremental Facility Amendment for Agreement or Extension Agreement, any Class of Incremental Term Loans or Extended Term Loans may be paid on a pro rata basis or less than pro rata basis with any other Class of Loans; provided, further that no prepayment of the Tranche B-1 Term Loans shall be made pursuant to clause (c) above. Any prepayment of Loans from a Prepayment Event described in clause (c) of the definition of “Prepayment Event” shall be applied to the Class or Classes of Loans selected by the Borrower. Notwithstanding the foregoing, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall first, be offered to Lenders who did not decline its pro rata share of the prepayment and second, if declined by such Tranche B Lenders, may be retained by the BorrowerBorrower and shall constitute “Declined Proceeds.”
(e) In the event any Tranche B-2 Term Loans are subject to a Repricing Event prior to the date that is one yearsix months after the Amendment No. 2 Effective Date, then each Lender whose Tranche B-2 Term Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Tranche B-2 Term Loans pursuant to Section 2.17, in connection with such Repricing Event or which holds a Tranche B-2 Term Loan the All-in Yield of which is reduced as a result of a Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Tranche B-2 Term Loans so prepaid, repaid, assigned or repriced.
(f) In the event that prior to third anniversary of the Tranche B-1 Effective Date (x) any Tranche B-1 Term Loan is prepaid pursuant to Section 2.09(a) or, to the extent resulting from a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” Section 2.09(b), such prepayment shall be accompanied by the Applicable Prepayment Premium or (y) any Lender is required to assign its Tranche B-1 Term Loans pursuant to Section 2.17(b), the Borrower shall pay such Lender the Applicable Prepayment Premium with respect to its Tranche B-1 Term Loans so required to be assigned.[Reserved].
(g) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail deliverytelecopy or facsimilefacsimileelectronic mail) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR BorrowingBorrowing or Fixed Rate Term Loan, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent as required by Section 2.122.11.2.11 and any break funding payments required by Section 2.14.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (f) of this Section.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that (i) the Aggregate total Revolving Exposure exceeds the Aggregate lesser of (A) the aggregate Revolving CommitmentCommitments or (B) the Borrowing Base, (ii) the total amount of Revolving Loans outstanding exceeds the Revolving Loan Sublimit, (iii) the total amount of Foreign Loans outstanding exceeds the Foreign Loan Limit, or (iv) LC Exposure exceeds the LC Sublimit, Borrower shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstandingForeign Loans, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days promptly after the day such Net Proceeds are receivedreceived by any Loan Party, prepay Term Borrowings the Obligations as set forth in Section 2.11(e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days twelve months after receipt of such Net Proceeds (or, if the Borrower has entered into a binding contract within twelve months after such Prepayment Event to acquire assets useful in its business and/or to repair the affected asset, as applicable, within eighteen months after such Prepayment Event), to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or the portion of ii) if full cash dominion is in effect, then such Net Proceeds specified shall be deposited in a cash collateral account and in either case, thereafter, such certificatefunds shall be made available to the applicable Loan Party as follows:
(1) the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed; and
(2) so long as the conditions set forth in Section 4.02 have been met, if applicable) except the Revolving Lenders shall make such Revolving Loan and such Foreign Loan or the Administrative Agent shall release funds from the cash collateral account; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day twelve month period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyeighteen month period, equipment or other tangible assets)as applicable, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Superior Offshore International Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in partpart on a pro rata basis with respect to any Class, without penalty or premium, subject to the requirements of this SectionSection 2.11.
(b) In the event and on each occasion that (i) the Aggregate aggregate Revolving Exposure Exposures exceeds the Aggregate Revolving Commitment then in effect or (ii) the aggregate amount of the Swingline Loans exceeds the Swingline Commitment, then the Borrower shall within one Business Day immediately prepay outstanding Revolving Borrowings (orLoans or Swingline Loans, if no such Borrowings are outstandingas applicable, and thereafter deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) , in an aggregate amount equal necessary to eliminate such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, any Intermediate Parent, the Borrower or any of its Restricted Subsidiary Subsidiaries in respect of any Mandatory Prepayment Event Event, the Borrower shall, within five (including by 5) Business Days after such Net Proceeds are received (or, in the Administrative Agent as loss payee in respect case of any a Mandatory Prepayment Event described in clause (b) of the definition of the term “Mandatory Prepayment Event”,” on the date of such Mandatory Prepayment Event), prepay the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings outstanding Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds, which prepayment shall be applied (i) first, to the remaining scheduled amortization payments of the Term Loans pursuant to Section 2.10 (including the final payment due on the Term Loan Maturity Date) on a pro rata basis and (ii) second, to the outstanding Revolving Loans (including to cash collateralize Letters of Credit) (with no permanent reduction in the Revolving Commitments); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Mandatory Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause Holdings and its Restricted Subsidiaries invest the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 days 12 months after receipt of such Net Proceeds to acquire real property, equipment or other tangible in assets to be used useful in the business of the Borrower or and the other Restricted Subsidiaries and certifying that no Default has occurred and is continuing(and, other than in the case of Net Proceeds from Casualty or similar events referred to in clause (z) of such clause (a), including any acquisitions permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect of the such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds specified in such certificateProceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied invested by the end of such 36012-day month period, at which time a prepayment shall be required in an amount equal to 68 Blue Bird Body Company Credit Agreement such Net Proceeds that have not been so invested; and provided, further, that if a binding commitment to reinvest such Net Proceeds described in the immediately preceding proviso is entered into within 12 months after receipt thereof, the 12-month reinvestment period permitted with respect to such Net Proceeds under the immediately preceding proviso shall be extended an additional one hundred eighty (or within a period of 180 180) days thereafter if by from the end of such initial 36012-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertymonth period, equipment or other tangible assets), at after which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtinvested.
(d) [Reserved].
(e) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31September 30, 2016 but solely 2017, the Borrower shall, within ten (10) Business Days of the date on which financial statements are required to be delivered pursuant to Section 5.01 with respect to that portion of such Fiscal Year during the fiscal year for which any Excess Cash Flow is being calculated, prepay Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified excess, if any, of (A) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such fiscal year minus (B) voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are reduced in a corresponding amount shall be reduced pursuant to Section 2.08, Revolving Loans) made with Internally Generated Cash Flow, on a dollar-for-dollar by basis paid in respect of the aggregate principal amount of prepayments such Loans; provided that, in the case of Term Borrowings made pursuant to paragraph (a) of this Section during Loans, such Fiscal Year, excluding any such prepayments prepayment is applied to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before remaining scheduled amortization payments of the date that is three Business Days after the date on which financial statements are delivered Term Loans pursuant to Section 5.01(a2.10 (including the final payment due on the Term Loan Maturity Date) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)a pro rata basis.
(ef) Prior to any optional or mandatory prepayment of Borrowings under this Sectionpursuant to Section 2.11(a), the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fh) of this Section. In the event of any mandatory prepayment of Term Loan Borrowings in respect of any Prepayment Event or Incremental Term Loan Borrowings made at a time when Term Loan Borrowings or Incremental Term Loan Borrowings of more than one Class remain outstanding, the Borrower shall select Term Loan Borrowings or Incremental Term Loan Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Loan Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Loan Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class. Optional prepayments of Term Loan Borrowings and Incremental Term Loan Borrowings shall be allocated among the Classes of Term Loan Borrowings and Incremental Term Loan Borrowings as directed by the Borrower; provided that the Borrower may not designate that any Tranche A Loans of any Class be so prepaid unless such prepayment is accompanied by at least a pro rata offer to prepay Term Lender and Tranche B Term Lender (and, to Loans. In the extent provided absence of a designation by the Borrower as described in the Incremental Facility Amendment for preceding provisions of this paragraph of the Type of Borrowing of any Class of Incremental Term LoansClass, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day shall apply such amounts to any outstanding ABR Borrowings prior to the required prepayment date, applying such amounts to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borroweroutstanding Eurodollar Borrowing.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail facsimile or facsimileother electronic transmission) of any prepayment pursuant to Section 2.11(a), 2.11(c) and 2.11(e) hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be in the form attached hereto as Exhibit J, shall be irrevocable and shall specify the prepayment date, the 69 Blue Bird Body Company Credit Agreement date and principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of one some other identifiable event or more events specified thereincondition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior 2.13 and amounts required pursuant to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentSection 2.16.
(h) Notwithstanding So long as any other provisions of this Section 2.10Term Loans remain outstanding, any Term Lender may elect to decline the extent any or all entire portion of the Net Proceeds prepayment of any event described in clause (aits Term Loans pursuant to Sections 2.11(c) or (e) (other than mandatory prepayments pursuant to clause (b) of the definition of the term “Mandatory Prepayment Event” ) by a Foreign Subsidiary or Excess Cash Flow attributable delivering notice to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors Administrative Agent of such Foreign Subsidiaryelection within seven (7) from being repatriated or distributed to or used for the benefit Business Days of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation receiving notice of any such amount prepayment, in which case such declined proceeds shall be returned to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amountretained proceeds, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case “Retained Declined Proceeds”). The amount of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to prepayment that is accepted by any Term Lender shall be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal ratably to the outstanding principal amount of the Base Rate Loans and Eurodollar Rate Loans that make up such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by Term Lender’s Term Loan. In the Borrower rather than such Foreign Subsidiary, less the amount absence of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness delivery of a Foreign Subsidiary)notice declining any prepayment by any Lender promptly upon receiving notice of such prepayment, such Lender shall automatically be deemed to have accepted such prepayment.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days one year after receipt of such Net Proceeds to acquire real propertyacquire, equipment repair or other tangible restore assets to be used or useful in the business of the Borrower or the Restricted Domestic Subsidiaries (or in the case of Prepayment Events of Foreign Subsidiaries, of any Subsidiaries), or to consummate any Permitted Acquisition of Persons that will become, or assets that will be held by, Domestic Subsidiaries (or in the case of Prepayment Events of Foreign Subsidiaries, that will become Subsidiaries or be held by any Subsidiaries) permitted hereunder (but not of other Persons), and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360one-day year period (or within a period of 180 90 days thereafter if by the end of such initial 360one-day year period the Borrower or one or more Restricted Domestic Subsidiaries (or, to the extent permitted above, Foreign Subsidiaries) shall have entered into an agreement with a third party to acquire acquire, repair or restore such real propertyassets, equipment or other tangible assetsto consummate such Permitted Acquisition, with such Net Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, provided that the Borrower may use an amount equal shall not be permitted to a portion of such make elections pursuant to the immediately preceding proviso with respect to Net Proceeds from a Prepayment Event described in clause (a) or (b) excess of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, $100,000,000 in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtin any fiscal year.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to 2012, and provided that portion of such Fiscal Year during which any Term Loans are outstandingthe Investment Grade Date has not occurred, the Borrower shall, if the Leverage Ratio as of the last day of such fiscal year shall have been equal to or greater than 2.00 to 1.00, prepay Term Borrowings of each Class in an aggregate amount equal to the Specified ECF Percentage amount of Excess Cash Flow for in respect of such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar fiscal year multiplied by the product of (A) 50% and (B) the percentage of the aggregate principal amount of prepayments the Term Borrowings of all Classes outstanding as of the end of such fiscal year represented by the Term Borrowings of such Class outstanding as of the end of such fiscal year, less the aggregate principal amount of any voluntary prepayment of Term Borrowings of such Class made by the Borrower pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year (or after year-end but prior to the time at which payment is due under this paragraph (d)), excluding any such prepayments to the extent financed from Excluded SourcesSources or previously applied to reduce any other prepayment under this paragraph (d). Each prepayment pursuant to this paragraph shall be made on or before the date that on which is three seven Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not no later than the date that is seven Business Days after the last day on which such financial statements may be delivered in compliance with such Section).
(e) In the event and on each occasion that, as a result of the receipt of any cash proceeds by the Borrower or any Subsidiary in connection with any Disposition of any asset or any other event, the Borrower or any other Loan Party would be required by the terms of any Indebtedness that is Subordinated Indebtedness with respect to the Loan Document Obligations (or any Refinancing Indebtedness in respect thereof) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Subordinated Indebtedness (or such Refinancing Indebtedness) or any other Subordinated Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Term Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain are outstanding, the Borrower shall (except as otherwise required by paragraph (d) of this Section) select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 3:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior 2.13 together with any additional amounts required pursuant to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentSection 2.16.
(h) Notwithstanding the foregoing, in the event that any portion of any Foreign Source Prepayment attributable to any Foreign Subsidiary cannot be made when due other provisions than with the proceeds of this Section 2.10, a dividend from such Foreign Subsidiary (or of a dividend from another Foreign Subsidiary of which the first Foreign Subsidiary is a direct or indirect subsidiary) that would result in a material tax liability to the extent any or all Borrower, then the requirement to make a prepayment with such portion shall be deferred until such time as such prepayment can be made with funds of the Borrower and the Subsidiaries that are available without resort to such a dividend. “Foreign Source Prepayment” means, for any Foreign Subsidiary, (i) the portion of Excess Cash Flow for any fiscal year that is attributable to the financial results of such Foreign Subsidiary and (ii) any Net Proceeds of any event described in clause arising from a Prepayment Event under paragraph (a), (b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, Event in either case are prohibited or delayed by respect of any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors asset of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (NCR Corp)
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Cayman Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Holdings, either Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause paragraph (a) or (b) of the definition of the term “"Prepayment Event”)", the Borrower Borrowers shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; Proceeds (excluding, in the case of a sale or other disposition of Equity Interests in a Permitted Option Subsidiary or Seagate Software as described in clause (a) of the definition of the term Prepayment Event, any proceeds required to be paid to Permitted Optionholders as consideration for Permitted Options (or Equity Interests issued or issuable upon exercise of Permitted Options) held by such Permitted Optionholders in respect of such Permitted Option Subsidiary or Seagate Software), provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”", if the Cayman Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings, the Borrower intends Borrowers and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, (i) to acquire real property, equipment or other tangible assets to be used in the business of the Borrower Borrowers and the Subsidiaries or (ii) to purchase Equity Interests of a Person primarily engaged in a business permitted by Section 6.03(b) to the Restricted Subsidiaries extent permitted by Section 6.04, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, .
(d) In the event and on each occasion that the Borrower may use an amount equal to a portion of such any Net Proceeds from a are received by or on behalf of Holdings, either Borrower or any Subsidiary in respect of any Prepayment Event described in clause paragraph (a) or (bc) of the definition of the term “"Prepayment Event” to ", the Borrowers shall, within five Business Days after such Net Proceeds are received, prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case Term Borrowings in an aggregate amount not equal to exceed the product 75% of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtProceeds.
(de) Following the end of each Fiscal Yearfiscal year of the Cayman Borrower, commencing with the Fiscal Year fiscal year ending December 31June 29, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2002, the Borrower Borrowers shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage positive difference (if any) between (i) 75% of Excess Cash Flow for such Fiscal Year; fiscal year and (ii) the aggregate principal amount of Term Borrowings prepaid during such fiscal year pursuant to Section 2.11(a), provided that (A) if, at the end of such amount fiscal year, the Leverage Ratio is less than or equal to 0.75 to 1.00, then the percentage referred to in clause (i) of this paragraph (e) shall be reduced dollar-for-dollar by to 50% and (B) if, at the aggregate amount end of prepayments of Term Borrowings made pursuant such fiscal year, the Leverage Ratio is less than or equal to paragraph 0.50 to 1.00, then the percentage referred to in clause (ai) of this Section during such Fiscal Year, excluding any such prepayments paragraph (e) shall be reduced to the extent financed from Excluded Sources25%. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(ef) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, Borrowers shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower Borrowers shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and the Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; , provided that, so long as and to the extent that any Tranche A Term Lender and Borrowing remains outstanding, (i) any Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans pursuant to paragraph (e) of any this Section or, if the Cayman Borrower has consented to the availability of such Class election pursuant to this Section paragraph (other than an optional prepayment f), pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained applied to prepay Tranche A Term Borrowings and (ii) at the election of the Cayman Borrower, the first $15,000,000 in aggregate (A) mandatory prepayments that would otherwise be made pursuant to Section 2.11(e) to Lenders holding Tranche B Term Loans or (B) optional prepayments that would otherwise be made pursuant to Section 2.11(a) to Lenders holding Tranche B Term Loans, in either case shall be applied to prepay Tranche A Term Borrowings. An amount equal to 85.71% of the portion of any optional or mandatory prepayment of Term Borrowings that is allocated pursuant to this paragraph (f) to the Tranche A Term Borrowings shall be made by the BorrowerCayman Borrower in respect of the Cayman Tranche A Term Loans and an amount equal to 14.29% of the portion of any optional or mandatory prepayment of Term Borrowings that is allocated pursuant to this paragraph (f) to the Tranche A Term Borrowings shall be made by the U.S. Borrower in respect of the U.S. Tranche A Term Loans. An amount equal to 85.71% of the portion of any optional or mandatory prepayment of Term Borrowings that is allocated pursuant to this paragraph (f) to the Tranche B Term Borrowings shall be made by the Cayman Borrower in respect of the Cayman Tranche B Term Loans and an amount equal to 14.29% of the portion of any optional or mandatory prepayment of Term Borrowings that is allocated pursuant to this paragraph (f) to the Tranche B Term Borrowings shall be made by the U.S. Borrower in respect of the U.S. Tranche B Term Loans.
(fg) The Cayman Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (other than a prepayment required by the proviso to Section 2.01(e)) (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.2:00 p.m., New York City time, on one Business Day prior to the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, (iii) in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective DateSwingline Loan, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).than
Appears in 1 contract
Samples: Credit Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay (without premium or penalty except with respect to Initial Term B-1 Loans as provided in Section 2.08(f), if applicable) any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (d) of this Section, in a minimum amount equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that the foregoing shall not prohibit prepayment in an amount less than the denominations specified above if the amount of such prepayment constitutes the remaining outstanding balance of the Borrowing being prepaid.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three five (5) Business Days after the day such Net Proceeds are receivedreceived by the Borrower or such Restricted Subsidiary), prepay the Initial Term Borrowings B-1 Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if ,” the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to or any Restricted Subsidiary may cause the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied invested within 360 365 days after receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the and its Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, then division, product line or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the such portion of such Net Proceeds specified in such certificate, if applicableso invested) except to the extent of any such Net Proceeds that have not been so applied invested by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party or binding commitment to acquire invest such real property, equipment or other tangible assetsNet Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedinvested (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section 2.08(b) does not exceed $10,000,000 in any fiscal year); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other Indebtedness that is secured by the Collateral on a pari passu basis with the Loans to the extent that such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such Permitted Pari Passu Refinancing Debt other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt other Indebtedness and the denominator of which is the sum of the aggregate outstanding principal amount of Initial Term B-1 Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtother Indebtedness.
(dc) Following In the end event that the Borrower has Excess Cash Flow for any fiscal year of each Fiscal Yearthe Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2017, the Borrower shall shall, within five (5) Business Days after the date financial statements are required to be delivered pursuant to Section 5.01(a) for such fiscal year, prepay an aggregate principal amount of Initial Term Borrowings B-1 Loans in an aggregate amount equal to the Specified excess of (x) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year over (y) the aggregate amount of (i) prepayments of Loans pursuant to Section 2.08(a) during such amount shall be reduced fiscal year and (ii) purchases of Loans pursuant to Section 9.04(e) by the Borrower or any Restricted Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any such purchase and not the par value of the Loans purchased by such Person) (in each case other than with the proceeds of Indebtedness and, in the case of any prepayment of Revolving Loans pursuant to Section 2.08(a), only to the extent accompanied by a permanent reduction of Revolving Credit Commitments on a dollar-for-dollar basis).
(d) Within one (1) Business Day after the day any Net Proceeds are received by the aggregate Borrower in respect of the Short-Term Loan Distribution, the Borrower shall prepay the Interim Term Loans in an amount equal to 100% of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded SourcesNet Proceeds. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In Mandatory prepayments shall be applied without premium or penalty. Notwithstanding the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansforegoing, any Initial Term B Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(f) In the event any Initial Term B-1 Loans are subject to a Repricing Event prior to the date that is six months after the Amendment No. 1 Effective Date, then each Lender whose Initial Term B-1 Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Initial Term B-1 Loans pursuant to Section 2.16, in each case in connection with such Repricing Event or which holds an Initiala Term B-1 Loan the All-in Yield of which is reduced as a result of a Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Initial Term B-1 Loans so prepaid, repaid, assigned or repriced.
(g) In the event and on each occasion that the aggregate principal amount of Revolving Loans exceeds the total Revolving Credit Commitments, the Borrower shall prepay the Borrowings under the Revolving Facility in an aggregate principal amount equal to such excess.
(h) The Borrower shall notify the Administrative Agent by telephone (confirmed or by hand delivery, e-mail or facsimilein accordance with Section 9.01 and in any event as confirmed by telecopy) of any prepayment of a Borrowing hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of such prepayment (or such later time as the Administrative Agent may agree), and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if prepaid. If a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinconsummation of any other transaction, in which case then such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymenteffective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid BorrowingRevolving Borrowing and each prepayment of a Term Loan Borrowing pursuant to Section 2.08(a) shall be applied to the remaining scheduled payments of the applicable Term Loans included in the prepaid Term Loan Borrowing in such order as directed by the Borrower, but absent such direction, in direct order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.10 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of any prepayment of Eurodollar Loans pursuant to this Section 2.08 on any day prior to the last day of an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a transaction described written request by any applicable Lender (which request shall set forth in clause reasonable detail the basis for requesting such amount) pay to the Administrative Agent for the account of such Lender any amounts required pursuant to Section 2.13. Each prepayment of Initial Term B-1 Loans pursuant to Sections 2.08(b) and (c) shall be applied to the remaining scheduled amortization payments of the Initial Term B-1 Loans in direct order of maturity.
(i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of if the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be paid by the Borrower prepaid pursuant to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a2.08(b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary would result in material adverse tax consequences or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law Requirement of Law (including financial assistance, assistance and corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiaryrelevant directors) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to Borrower, then the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to be applied to prepay the Term Loans at the times provided in this such amounts as required under Section 2.10 but may be retained by 2.08(b) and (c) for so long as such material tax consequences exist or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law Requirement of Law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequencesBorrower, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)applicable.
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In To the event and on each occasion that extent permitted by the Aggregate Revolving Exposure exceeds Intercreditor Agreement, all voluntary prepayments of Loans effected prior to the Aggregate Revolving Commitment, first anniversary of the Borrower Effective Date shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with be accompanied by a prepayment fee equal to 2.00% of the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount of such prepayments, and all voluntary prepayments of Loans effected on or after the first anniversary of the Effective Date and prior to the second anniversary of the Effective Date shall be accompanied by a prepayment fee equal to 1.00% of the aggregate amount of such excessprepayments.
(c) In Subject to the terms of the Intercreditor Agreement, in the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Domestic Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay first, to the extent First-Lien Term Borrowings Loans remain outstanding and such prepayment has not been waived by the Lenders of the First-Lien Term Loans, First-Lien Term Loans and second, if the lenders of the First-Lien Term Loans waive any such prepayment or if no First-Lien Term Loans remain outstanding (unless otherwise permitted under this Agreement or unless otherwise consented to by the requisite vote of lenders under this Agreement), the Loans, on each occasion in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause or any Domestic Subsidiary applies the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 days after receipt of such Net Proceeds and at a time when no Event of Default has occurred and is continuing, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Domestic Subsidiaries (provided that, the Borrower has delivered to the Administrative Agent within ten Business Days after such Net Proceeds are received a certificate of a Financial Officer stating its intention to do so and certifying that no Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided. The Borrower shall provide to the Administrative Agent any such evidence reasonably requested by the Administrative Agent with respect to any commitment of Holdings, further, that the Borrower may use or any Subsidiary to apply Net Proceeds in accordance with this Section 2.10(c).
(d) Subject to the terms of the Intercreditor Agreement, in the event and on each occasion that any Net Proceeds are received by or on behalf of any Foreign Subsidiary in respect of any Prepayment Event, the Borrower shall, within five Business Days after such Net Proceeds are received, prepay first, to the extent First-Lien Term Loans remain outstanding and such prepayment has not been waived by the Lenders of the First-Lien Term Loans, First-Lien Term Loans and second, if the lenders of the First- Lien Term Loans waive any such prepayment or if no First-Lien Term Loans remain outstanding (unless otherwise permitted under this Agreement or unless otherwise consented to by the requisite vote of lenders under this Agreement), the Loans, on each occasion in an aggregate amount equal to a portion 100% of the amount of such Net Proceeds from a Prepayment Event Proceeds, provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay ”, if the Borrower or repurchase any Permitted Pari Passu Refinancing Debt to Foreign Subsidiary applies the extent that the documentation governing Net Proceeds from such Permitted Pari Passu Refinancing Debt requires such event (or a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of portion thereof) (xi) the amount within 360 days after receipt of such Net Proceeds (or, in the event that the repatriating of such Net Proceeds to the United States would result in material tax liabilities to Holdings or any of its Subsidiaries, within 540 days after receipt of such Net Proceeds) and (yii) at a time when no Event of Default has occurred and is continuing, to acquire real property, equipment or other tangible assets to be used in the business of the Foreign Subsidiaries (provided that, the Borrower has delivered to the Administrative Agent within ten Business Days after such Net Proceeds are received a certificate of a Financial Officer stating the intention to do so and certifying that no Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day or 540-day period, as applicable, at which time (or at such earlier time at which such Net Proceeds have been repatriated to the United States) a fractionprepayment shall be required in an amount equal to such Net Proceeds that have not been so applied. The Borrower shall provide to the Administrative Agent any such evidence reasonably requested by the Administrative Agent with respect to any commitment of any Foreign Subsidiary to apply Net Proceeds in accordance with this Section 2.10(d) and, pending such application, such Net Proceeds shall be held by the numerator applicable Foreign Subsidiary in the form of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtInvestments.
(de) Following Subject to the terms of the Intercreditor Agreement, following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2006, the Borrower shall prepay first, to the extent First-Lien Term Borrowings Loans remain outstanding and such prepayment has not been waived by the Lenders of the First- Lien Term Loans, First-Lien Term Loans and second, if the lenders of the First-Lien Term Loans waive any such prepayment or if no First-Lien Term Loans remain outstanding (unless otherwise permitted under this Agreement or unless otherwise consented to by the requisite vote of lenders under this Agreement), the Loans, on each occasion in an aggregate amount equal to the Specified ECF Required Percentage of Excess Cash Flow for such Fiscal Year; fiscal year, provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans made pursuant to paragraph (aSection 2.10(a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 120 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(ef) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the occurrence effectiveness of one other credit facilities or more events specified thereinthe receipt of the proceeds from the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymentdate) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Such notice to the Lenders may be by electronic communication. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Second Lien Credit Agreement (RedPrairie Holding, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements requirement to pay any amounts required pursuant to paragraph (e) of this Section.
(b) In the event and on each occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal necessary to eliminate such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any of its Restricted Subsidiary Subsidiaries in respect of any Prepayment Event, the Borrower shall, within five Business Days after such Net Proceeds are received (or, in the case of a Prepayment Event described in clause (including by b) of the Administrative Agent as loss payee definition of the term “Prepayment Event,” within one Business Day of such Prepayment Event), prepay Term Loans in respect an -73- aggregate amount equal to (i) 50% of any the amount of such Net Proceeds in the case of a Prepayment Event described in clause (a) of the definition of the term “Prepayment Event and (ii) 100% of the amount of such Net Proceeds in the case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, prior and its Restricted Subsidiaries intend to the date of the required prepayment, deliver invest (or commit to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause invest) the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible in long-term assets to be used useful in the business of the Borrower or and the Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including any acquisitions permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect of the such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds specified in such certificateProceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied (x) invested (or committed to be invested) by the end of such 360365-day period or (or y) if committed to be so invested within a period of such 365-day period, have not been so invested within 180 days thereafter if by after the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets)in each case, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; providedinvested (or committed to be invested), further, that in the Borrower may use an amount equal to a portion case of such Net Proceeds from a Prepayment Event described in clause (a) x), or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Eventhave not been so invested, in each the case in an amount not to exceed the product of (x) the amount of such Net Proceeds and clause (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt).
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstandingExcess Cash Flow Period, the Borrower shall prepay Term Borrowings Loans in an aggregate amount equal to the Specified Applicable ECF Percentage of Excess Cash Flow for such Fiscal YearExcess Cash Flow Period; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans (and, to the extent the Revolving Commitments are reduced in a corresponding amount pursuant to Section 2.08, Revolving Loans) made pursuant to paragraph (aSection 2.11(a) of this Section during such Fiscal Year, Excess Cash Flow Period (excluding any all such prepayments funded with the proceeds of other Funded Debt (other than Revolving Loans) and excluding such prepayments applied to amortization payments on the extent financed from Excluded SourcesTerm Loans due in such Excess Cash Flow Period). Each prepayment pursuant to this paragraph shall be made on or before the date that is three ten (10) Business Days after the date on which financial statements are required to have been delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)Period.
(e) All prepayments hereunder shall be accompanied by (1) accrued interest to the extent required by Section 2.13, (2) any amounts payable as provided in Section 2.16 and (3) in the event of a Repricing Transaction, the Prepayment Premium. (f) (i) Prior to any optional or mandatory prepayment of Borrowings under this Sectionpursuant to Section 2.11(a), the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any optional prepayment of Term Loans made at a time when Term Loans of more than one Class remain outstanding, the Borrower may select any Class of Term Loans to be prepaid and, in the absence of such selection, such prepayment shall be applied to each Class of Term Loans on a pro rata basis (or, to the extent provided in the Additional Credit Extension Amendment for any Class of Term Loans, less than pro rata for such Class) based on the aggregate principal amount of Term Loans of such Class outstanding. Optional prepayments of Term Loans shall otherwise be allocated as directed by the Borrower; provided that, absent any such direction, such prepayments shall be applied to the remaining amortization payments of such Term Loans in direct order of maturity thereof. -74- (ii) In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such mandatory prepayment is allocated between Tranche A among Borrowings of Term Borrowings and Tranche B Term Borrowings andLoans of each Class pro rata (or, to the extent provided in the Incremental Facility Additional Credit Extension Amendment for any Class of Incremental Term Loans, the Borrowings of less than pro rata for such Class, pro rata ) based on the aggregate principal amount of outstanding Borrowings of each such Class. Mandatory prepayments of Term Loans shall be applied to the remaining amortization payments of such Term Loans in direct order of maturity thereof; provided that provided, further, that, notwithstanding anything to the contrary contained in this Section 2.11(f), any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one two Business Day Days prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section 2.11(c) (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply respect to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary”) or (yd) (such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiaryamounts, “Declined Amounts”).
Appears in 1 contract
Samples: Credit Agreement (Virtus Investment Partners, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, that (i) in the case of any Net Proceeds received, in an aggregate amount since the Restatement Effective Date of less than $5,000,000, in respect of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause the apply such Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment repair or other tangible replace the assets to be used that have suffered from such event described in the business clause (b) of the Borrower or the Restricted Subsidiaries definition of Prepayment Event, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the such Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-180 day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that (ii) in the Borrower may use an amount equal to a portion case of such Net Proceeds from a Prepayment Event any event described in clause (a) of the definition of “Prepayment Event” (other than dispositions by an Unrestricted Subsidiary), if, after giving effect to such Prepayment Event, the Senior Secured Leverage Ratio (calculated giving pro-forma effect to such Prepayment Event) is less than 3.00 to 1.00, the Borrower may elect, by notice to the Administrative Agent, not to make all or a portion of the prepayment that otherwise would be required in respect of such Prepayment Event, provided that the Borrower may not elect to not make a prepayment under this clause (bc)(ii) to the extent that the aggregate amount of all prepayments that are not made by reason of (1) such election, (2) prior elections pursuant to this clause (c)(ii) and (3) the operation of clause (a)(iii) of the definition of “Prepayment Event”, would exceed $25,000,000 on a cumulative basis; (iii) in the term case of any event described in clause (d) of the definition of “Prepayment Event”, in the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower, or any Subsidiary in respect of such Prepayment Event after the Restatement Effective Date, the Borrower shall, within five Business Days after such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 75% of such Net Proceeds; and (iv) in the case of any event described in clause (a) of the definition of “Prepayment Event” with regard to prepay or repurchase any Permitted Pari Passu Refinancing Debt an Unrestricted Subsidiary, no prepayment shall be required under this Section 2.11(c) if and to the extent that the documentation governing (A) such Permitted Pari Passu Refinancing Debt requires prepayment would be prohibited or restricted by, or would constitute a violation under any applicable law, rule or regulation, or (B) such a prepayment or repurchase thereof with the proceeds of obligation to make such Prepayment Event, in each case in an amount not prepayment would reasonably be expected to exceed subject the product of (x) the amount of Borrower or such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtUnrestricted Subsidiary to increased tax liability.
(d) Following the end of each Fiscal Year, fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December March 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2009, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 75% of Excess Cash Flow for such Fiscal Yearfiscal year; provided that (i) if Excess Cash Flow for such fiscal year exceeds $27,500,000, then, for the purposes of calculating the amount of the prepayment of Term Borrowings required by this paragraph for such fiscal year, the amount of Excess Cash Flow for such fiscal year shall be deemed reduced by (x) the amount of Deferred Fees paid in cash at or prior to the time that the prepayment of Term Loans is made hereunder and (y) the amount of cash interest payments made to holders of Permitted Refinancing Indebtedness of Existing Subordinated Debt solely as a result of the PIK Toggle Feature at or prior to the time that the prepayment of Term Loans is made hereunder, (ii) the amount of any prepayment required pursuant to this Section 2.11(d) in respect of any fiscal year shall be reduced dollar-for-dollar by the aggregate amount of prepayments any optional prepayment of Term Borrowings made pursuant to paragraph (aSection 2.11(a) of during such fiscal year or thereafter but prior to any mandatory prepayment required to be made under this Section during 2.11(d) in respect of such Fiscal Year, excluding fiscal year (other than any such prepayments prepayment which reduced any required mandatory prepayment under this Section in respect of the prior fiscal year) and (iii) solely with respect to the extent financed from Excluded Sourcesprepayment payable hereunder in respect of the fiscal year ending March 31, 2009, such payment shall not be required in an amount exceeding the excess of (A) the sum of the Borrower’s consolidated cash and Permitted Investments plus the unused amount of the Revolving Commitments, as of the date that payment is due, minus (B) $20,000,000. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of any Borrowing (other than a Eurodollar Swingline Loan or an optional prepayment of an ABR Borrowing), not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of an optional prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings Loans effected on or prior to the six-month anniversary of date that is 18 months following the Effective Date, in each case Restatement Completion Date with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements substantially concurrent issuance or other modifications incurrence of this Agreement on or prior to new secured credit facilities the six-month anniversary of the Effective Date, the effect primary purpose of which is a Repricing Transactionto refinance Indebtedness hereunder at an interest rate spread more favorable to the Borrower, in each case shall be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds prepayments. All prepayments of Term Loans effected on or Excess Cash Flow prior to such reinvestments or the date that is thirty-six months following the Restatement Effective Date (other than prepayments as if such Net Proceeds or Excess Cash Flow had been received made pursuant to Section 2.11(d)) shall be accompanied by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)Applicable Prepayment Premium.
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Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay (without premium or penalty except with respect to Initial Term B Loans as provided in Section 2.08(f), if applicable) any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (d) of this Section, in a minimum amount equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that the foregoing shall not prohibit prepayment in an amount less than the denominations specified above if the amount of such prepayment constitutes the remaining outstanding balance of the Borrowing being prepaid.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three five (5) Business Days after the day such Net Proceeds are receivedreceived by the Borrower or such Restricted Subsidiary), prepay the Initial Term Borrowings B Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if ,” the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to or any Restricted Subsidiary may cause the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied invested within 360 365 days after receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the and its Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, then division, product line or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the such portion of such Net Proceeds specified in such certificate, if applicableso invested) except to the extent of any such Net Proceeds that have not been so applied invested by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party or binding commitment to acquire invest such real property, equipment or other tangible assetsNet Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedinvested (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section 2.08(b) does not exceed $10,000,000 in any fiscal year); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other Indebtedness that is secured by the Collateral on a pari passu basis with the Loans to the extent that such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such Permitted Pari Passu Refinancing Debt other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt other Indebtedness and the denominator of which is the sum of the aggregate outstanding principal amount of Initial Term B Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtother Indebtedness.
(dc) Following In the end event that the Borrower has Excess Cash Flow for any fiscal year of each Fiscal Yearthe Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2017, the Borrower shall shall, within five (5) Business Days after the date financial statements are required to be delivered pursuant to Section 5.01(a) for such fiscal year, prepay an aggregate principal amount of Initial Term Borrowings B Loans in an aggregate amount equal to the Specified excess of (x) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year over (y) the aggregate amount of (i) prepayments of Loans pursuant to Section 2.08(a) during such amount shall be reduced fiscal year and (ii) purchases of Loans pursuant to Section 9.04(e) by the Borrower or any Restricted Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any such purchase and not the par value of the Loans purchased by such Person) (in each case other than with the proceeds of Indebtedness and, in the case of any prepayment of Revolving Loans pursuant to Section 2.08(a), only to the extent accompanied by a permanent reduction of Revolving Credit Commitments on a dollar-for-dollar basis).
(d) Within one (1) Business Day after the day any Net Proceeds are received by the aggregate Borrower in respect of the Short-Term Loan Distribution, the Borrower shall prepay the Interim Term Loans in an amount equal to 100% of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)Net Proceeds.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In Mandatory prepayments shall be applied without premium or penalty. Notwithstanding the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansforegoing, any Initial Term B Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(f) In the event any Initial Term B Loans are subject to a Repricing Event prior to the date that is six months after the Effective Date, then each Lender whose Initial Term B Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Initial Term B Loans pursuant to Section 2.16, in each case in connection with such Repricing Event or which holds an Initial Term B Loan the All-in Yield of which is reduced as a result of a Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Initial Term B Loans so prepaid, repaid, assigned or repriced.
(g) In the event and on each occasion that the aggregate principal amount of Revolving Loans exceeds the total Revolving Credit Commitments, the Borrower shall prepay the Borrowings under the Revolving Facility in an aggregate principal amount equal to such excess.
(h) The Borrower shall notify the Administrative Agent by telephone (confirmed or by hand delivery, e-mail or facsimilein accordance with Section 9.01 and in any event as confirmed by telecopy) of any prepayment of a Borrowing hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of such prepayment (or such later time as the Administrative Agent may agree), and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if prepaid. If a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinconsummation of any other transaction, in which case then such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymenteffective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid BorrowingRevolving Borrowing and each prepayment of a Term Loan Borrowing pursuant to Section 2.08(a) shall be applied to the remaining scheduled payments of the applicable Term Loans included in the prepaid Term Loan Borrowing in such order as directed by the Borrower, but absent such direction, in direct order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.10 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of any prepayment of Eurodollar Loans pursuant to this Section 2.08 on any day prior to the last day of an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a transaction described written request by any applicable Lender (which request shall set forth in clause reasonable detail the basis for requesting such amount) pay to the Administrative Agent for the account of such Lender any amounts required pursuant to Section 2.13. Each prepayment of Initial Term B Loans pursuant to Sections 2.08(b) and (c) shall be applied to the remaining scheduled amortization payments of the Initial Term B Loans in direct order of maturity.
(i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of if the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be paid by the Borrower prepaid pursuant to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a2.08(b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary would result in material adverse tax consequences or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law Requirement of Law (including financial assistance, assistance and corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiaryrelevant directors) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to Borrower, then the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to be applied to prepay the Term Loans at the times provided in this such amounts as required under Section 2.10 but may be retained by 2.08(b) and (c) for so long as such material tax consequences exist or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law Requirement of Law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequencesBorrower, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)applicable.
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section, without penalty or premium for any such prepayment or reduction except to the extent expressly set forth in this Agreement.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary of its Subsidiaries in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three (3) Business Days after the day such Net Proceeds are receivedreceived (after, in the case of any casualty or condemnation, taking into account such reinvestment periods provided for in the definition of Prepayment Event), (i) prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, Proceeds or (ii) in the case event the Prepayment Event is the result of any event described in clause (a) a sale, transfer or (b) of the definition of the term “Prepayment Event”disposition permitted under Section 6.05, if the Borrower shall, prior to the date of the required prepayment, deliver to the notify Administrative Agent a certificate of a Responsible Officer to the effect in writing that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of reinvest such Net Proceeds to acquire real property, equipment within 180 days (or other tangible assets to be used in the business of if the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuingsuch Loan party enters into a bona fide binding contract with an unaffiliated third party within 180 days of such receipt, then no prepayment shall be required pursuant to this paragraph which it commits to use such Net Proceeds, 270 days) to purchase property used or useful in respect of the Net Proceeds in respect of such event (or Loan Parties’ business which will, if the portion of property generating such Net Proceeds specified constituted Collateral, be subject to a perfected Lien in favor of Administrative Agent; provided, however, that if such certificate, if applicable) except to the extent of any reinvestment does not occur within such Net Proceeds that have not been so applied by the end of such 360-180 day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered such Loan party enters into a bona fide binding contract with an agreement with a unaffiliated third party within 180 days of such receipt, pursuant to acquire which it commits to use such real propertyNet Proceeds, equipment or other tangible assets270 days), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made Net Proceeds on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which of such financial statements may 180 day period. To the extent such prepayment would result in the payment of breakage costs hereunder, such prepayment shall be delivered in compliance with deferred until the last day of the applicable Interest Period or such Section)breakage costs shall be waived, at the election of the Required Lenders.
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City Houston, Texas time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Base Rate Borrowing, not later than 11:00 a.m., New York City Houston, Texas time, on one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(gf) All Swap Agreements and agreements governing Banking Services between Borrower and any Lender (ior any Affiliate of a Lender) prepayments are independent agreements governed by the written provisions of Tranche B Term Borrowings effected on said Swap Agreements and said agreements governing Banking Services, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or prior change in the terms of the Obligations, except as otherwise expressly provided in said Swap Agreements and said agreements governing Banking Services, and any payoff statement relating to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph Obligations shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower said Swap Agreements or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken agreements governing Banking Services except as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times otherwise expressly provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)payoff statement.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”" (other than the sale, transfer or other disposition of Receivables in connection with a Permitted Receivables Financing), if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings, the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings, Tranche B Term Borrowings and Tranche B C Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; , provided that, so long as and to the extent that any Tranche A Term Lender and Borrowing remains outstanding, any Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any or Tranche C Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Tranche C Term Loans of any such Class Loans, as applicable, pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Tranche C Term Loans of any such Class Loans, as applicable, but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 10:00 a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) that, if a notice of optional prepayment of any Loans is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments In the event of and on each occasion of any prepayment of any Tranche B Term Borrowings effected Borrowing or Tranche C Term Borrowing pursuant to Section 2.11(a) or (c), the Borrower shall pay to the Tranche B Lenders and Tranche C Lenders whose Tranche B Term Loans or Tranche C Term Loans, as applicable, are being prepaid a prepayment premium equal to (A) if such prepayment (or the date on which such prepayment is required to be made) occurs on or prior to the six-month anniversary of date that is one year after the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.002.0% of the aggregate principal amount of the Tranche B Term Borrowings so prepaidLoans or Tranche C Term Loans, in as applicable, being prepaid or (B) if such prepayment (or the case of a transaction described in clause (idate on which such prepayment is required to be made) of this paragraphoccurs more than one year after the Effective Date but on or prior to the date that is two years after the Effective Date, or 1.001.0% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any Loans or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Tranche C Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so longLoans, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiaryapplicable, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)being prepaid.
Appears in 1 contract
Samples: Credit Agreement (Semiconductor Components Industries LLC)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate aggregate amount of the Lenders’ Revolving Exposure Exposures exceeds the Aggregate total amount of the Lenders’ Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings and Incremental Extensions of Credit that are Term Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause clauses (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied or committed to be applied pursuant to a bona fide contract by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing Commencing with the Fiscal Year fiscal year ending December 3128, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2007, the Borrower shall prepay Term Borrowings and Incremental Extensions of Credit that are Term Loans in an aggregate amount equal to (i) the Specified ECF Percentage excess of (A) 50% of Excess Cash Flow over (B) prepayments of Term Loans and Incremental Extensions of Credit under Section 2.11(a) during such fiscal year, for any fiscal year for which the Net Leverage Ratio at the end of such fiscal year is greater than or equal to 4.00 to 1.00, (ii) the excess of (A) 25% of Excess Cash Flow over (B) prepayments of Term Loans and Incremental Extensions of Credit under Section 2.11(a) during such fiscal year, for any fiscal year for which the Net Leverage Ratio at the end of such fiscal year is greater than or equal to 3.25 to 1.00 and less than 4.00 to 1.00 and (iii) 0% of Excess Cash Flow for any fiscal year for which the Net Leverage Ratio at the end of such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant fiscal year is less than 3.25 to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources1.00. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing; provided that prepayments of Revolving Borrowings shall be deemed to be applied first, to Revolving Borrowings used for purposes other than to finance Permitted Acquisitions and second, to Revolving Borrowings used to finance Permitted Acquisitions. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) voluntary prepayments of Tranche B the Term Borrowings Loans effected on or prior to the six-month first anniversary of the Effective Date, in each case Date with the proceeds of a Repricing Transaction substantially concurrent issuance or incurrence of new term loans under this Agreement, as amended, amended and restated, supplemented, waived or otherwise modified from time to time (ii) amendments, amendments and restatements excluding a refinancing of all the facilities outstanding under this Agreement in connection with another transaction not permitted by this Agreement (as determined prior to giving effect to any amendment or other modifications waiver of this Agreement on or prior to the six-month anniversary of the Effective Datebeing adopted in connection with such transaction)), the effect of which is a Repricing Transaction, in each case shall be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or prepayments if the Borrower has determined in good faith that repatriation of any such amount to the Borrower Applicable Rate (or any similar interest rate spread) applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amountnew term loans is or, upon the portion satisfaction of such Net Proceeds or Excess Cash Flow so affected will not certain conditions, could be required less than the Applicable Rate applicable to be applied to prepay the Term Loans at on the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)Effective Date.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay the Revolving Borrowings Loans, and/or LC Exposure and/or Swingline Loans (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Collateral Account in an aggregate amount equal to such excess, in accordance with Section 2.06(j)).
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days immediately after the day such Net Proceeds are receivedreceived by any Loan Party or Subsidiary, prepay the Term Borrowings Loans as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in that qualifies as a “Prepayment Event” pursuant to clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except provided that to the extent of any such Net Proceeds that have not been so applied by the end of such 360-360 day period (or within a period of 180 days thereafter if committed to be applied by the end of such initial 360-360 day period and applied within 90 days after the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire end of such real property, equipment or other tangible assets360 day period), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of All prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class made pursuant to this Section (other than an optional prepayment pursuant Sections 2.11(a) and 2.11(c) shall be allocated pro rata to paragraph (a) of this Section, which may not all outstanding Term Loans and shall be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B reduce any remaining scheduled amortization payments on such Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borroweron a pro rata basis.
(fe) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimilefax) of any prepayment hereunder under this Section: (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one (1) Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing or Term Loan shall be in an amount that would be permitted minimum amounts of at least $1,000,000 and multiples $1,000,000 in excess thereof (or, if less, the case outstanding principal balance of an advance of a such Revolving Borrowing of the same Type or Term Loan, as provided in Section 2.02applicable), except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing Revolving Loan shall be applied ratably to the Loans included in the prepaid BorrowingRevolving Loans. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 1 contract
Samples: Credit Agreement (Aceto Corp)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary (or, in the case of an IPO, any Qualified IPO Parent) in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three not later than the fifth Business Days after Day following the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that the Borrower may use a portion of such Net Proceeds to prepay or repurchase Other Second Lien Secured Indebtedness to the extent any applicable credit agreement, indenture or other agreement governing such Other Second Lien Secured Indebtedness so requires, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Other Second Lien Secured Indebtedness and the denominator of which is the sum of the outstanding principal amount of such Other Second Lien Secured Indebtedness and the outstanding principal amount of Loans; provided further that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used or useful in the business of the Borrower or any of the Restricted Subsidiaries Subsidiary Loan Parties (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary), or to consummate any Permitted Acquisition in accordance with the provisions hereof of Persons that will become, or assets that will be held by, the Borrower or any of the Subsidiary Loan Parties (or any Foreign Subsidiary, solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary) (but not of or by other Persons), and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of period, with such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)Net Proceeds, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(dc) Following Subject to paragraph (g) of this Section, following the end of each Fiscal Year, fiscal year commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of 2014 (each such Fiscal Year during which any Term Loans are outstandingfiscal year, an “ECF Year”), the Borrower shall prepay Term Borrowings Loans of each Class in an aggregate amount equal to (i)(x) the Specified ECF Percentage of Excess Cash Flow in respect of such ECF Year plus, commencing with the payment to be made in respect of Excess Cash Flow for the ECF Year ending December 31, 2015, 100% of the ECF Shortfall Amount in respect of such Fiscal YearECF Year multiplied by (ii) the percentage of the aggregate principal amount of the Loans of all Classes outstanding as of the end of such ECF Year represented by the Loans of such Class (but, in each case, disregarding for purposes of determining such percentage any prepayments referred to in the immediately succeeding proviso); provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans of such Class made pursuant to paragraph (a) of this Section during such Fiscal ECF Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three fifth Business Days after Day following the date on which financial statements for such fiscal year are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (calculated, and in any event not later than the fifth Business Day following the last day on which such financial statements may be delivered in compliance with such Section( the date of each such required prepayment, an “ECF Sweep Payment Date”).
(d) In the event and on each occasion that, as a result of the receipt of any cash proceeds by Holdings, the Borrower or any other Subsidiary in connection with any Disposition of any asset or any other event, Holdings, the Borrower or any other Loan Party would be required by the terms of any Indebtedness that is Subordinated Indebtedness with respect to the Obligations (or any Refinancing Indebtedness in respect thereof) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Subordinated Indebtedness (or such Refinancing Indebtedness) or any other Subordinated Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event Loans made at a time when Term Borrowings Loans of more than one Class remain are outstanding, the Borrower shall select Term Borrowings Loans to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings among the Loans and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings Loans of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings Loans of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings Loans pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class Classes of the contents thereof. Each partial prepayment of any Borrowing Loans shall be in an amount that would be permitted in the case of an advance of a Borrowing any Loans of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing Loans shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All Notwithstanding the provisions of paragraph (ic) prepayments of Tranche B Term Borrowings effected this Section 2.11, if, immediately after giving effect to any prepayment required by such paragraph in respect of Excess Cash Flow for any ECF Year and the ECF Shortfall Amount in respect of such ECF Year, the GAAP Working Capital of Holdings (as would be reflected on or prior to the six-month anniversary a consolidated balance sheet prepared in accordance with GAAP as of the Effective Dateprepayment date or as of the last day of the ECF Year in respect of which Excess Cash Flow is being calculated, in each case with giving effect to such prepayment) would be less than $10,000,000, then the proceeds Borrower may defer payment of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications such amount of this Agreement on or prior the required repayment to the six-month anniversary next following ECF Sweep Payment Date as may be necessary so that such GAAP Working Capital as of the Effective Date, the each such date (calculated as provided above and giving effect of which is a Repricing Transaction, to any prepayment made) will equal at least $10,000,000 (such retained amount in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% respect of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be prepayment otherwise required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments made pursuant to paragraph (c) of this Section in that fiscal year, the “ECF Shortfall Amount” for such fiscal year, which for the avoidance of doubt will include , to the extent not paid on such payment date, the Excess Cash Flow payment in respect of the immediately preceding ECF Year as well as the ECF Shortfall Amount from such preceding fiscal year). Notwithstanding the foregoing, if on the last day of any fiscal quarter, the GAAP Working Capital of Holdings, taking into account the accrual under GAAP of payment obligations in respect of the ECF Shortfall Amount and the projected Excess Cash Flow prepayment to be made on the next following ECF Sweep Payment Date, would be less than $10,000,000, then only such portion (or if any) of such ECF Shortfall Amount and of the Excess Cash Flow prepayment that would otherwise be required to be made on the next following ECF Sweep Payment Date that, if due and payable on such ECF Sweep Payment Date, would not result in such GAAP Working Capital being less than $10,000,000, will be payable on such ECF Sweep Payment Date, and the Borrower’s obligation to pay the remainder of such ECF Shortfall Amount and such Excess Cash Flow would prepayment will be automatically extended and deferred to the second following ECF Sweep Payment Date (subject, however, to adjustment in connection with calculations of GAAP Working Capital on subsequent fiscal quarter end dates and, in the case of the next following ECF Sweep Payment Date, pursuant to the first sentence of this paragraph (g)).
(h) If all or any portion of the Loans of any Lender are repaid or prepaid for any reason (other than pursuant to Section 2.11(b) or 2.11(c) (except as a result of the receipt of Net Proceeds from an IPO), or 2.11(d), but including, for the avoidance of doubt, upon acceleration, in connection with the purchase of the Loans of any Lender required by the Borrower pursuant to Section 2.19(b) or 9.02(c), or in connection with any Refinancing Term Loans being made pursuant to Section 2.22), such repayment or prepayment shall be accompanied by a fee paid by the Borrower to such Lender in the case of any such repayment or prepayment (i) prior to the first anniversary of the Effective Date, equal to 2.0% of the aggregate principal amount of the Loans of such Lender so repaid or prepaid, (ii) on or after the first anniversary of the Effective Date and prior to the second anniversary of the Effective Date, equal to 1.0% of the aggregate principal amount of the Loans of such Lender so repaid or prepaid and (iii) on or after the second anniversary of the Effective Date, equal to 0%; provided that if such Loans are prepaid as a result of an IPO Prepayment Event referred to in clause (d) of the definition of such term on or prior to the date that is 120 days after the Effective Date, such fee shall be equal to 1.0%, rather than 2.0%, of the aggregate principal amount of the Loans so prepaid.
(i) Notwithstanding anything in this Section 2.11 to the contrary, unless and until there is no principal, premium, interest, fees or other amounts due or outstanding under the First Lien Credit Agreement and the lending commitments thereunder have been so terminated, no mandatory prepayments of outstanding Loans that would otherwise be required if it were Net Proceedsunder Section 2.11(b), (xc), or (d), other than any such prepayment required as the result of an IPO Prepayment Event referred to in clause (d) of the Borrower applies an amount equal to the amount definition of such Net Proceeds or Excess Cash Flow term, shall be required to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)made.
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Prepayment of Loans. (a) The In the event and on such occasion that (i) the Total Revolving Extensions of Credit exceed the Total Commitments or (ii) the Total Revolving Extensions of Credit (excluding for such purposes Protective Advances) exceed the Borrowing Base, the Borrower shall have the right at promptly (and in any time and from time to time to event within two Business Days) prepay any Borrowing, in whole (or in partthe case of L/C Exposure, subject cash collateralize) the Revolving Loans, L/C Exposure and/or (in the case of clause (i) above) the Protective Advances in an aggregate amount equal to such excess (it being understood that the requirements Borrower shall prepay Revolving Loans and/or Protective Advances prior to cash collateralization of this SectionL/C Exposure).
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event Disposition (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (bother than a Disposition pursuant to Section 7.5(b)) of assets included in the definition of the term “Prepayment Event”)Borrowing Base, the Borrower shall, within three Business Days immediately after the day such Net Cash Proceeds are receivedreceived by the Borrower or any Loan Party, prepay Term Borrowings the Revolving Loans and cash collateralize the L/C Obligations as set forth in Section 2.11(c) below in an aggregate amount equal to 100% of such Net Cash Proceeds, provided that, for so long as Full Cash Dominion is not in effect, the amount Borrower shall have 90 days after receipt of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior Cash Proceeds to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 days after receipt of such Net Proceeds to acquire (or replace or rebuild) real property, equipment or other tangible assets (including inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Cash Proceeds specified in such certificate, if applicableso applied; provided further that (i) except to the extent of any such Net Cash Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property90‑day period, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Cash Proceeds that have not been so applied (ii) to the extent Full Cash Dominion is in effect at any time during such 90-day period, a prepayment shall immediately be required at such time in amount equal to such Net Cash Proceeds that have not been so applied; provided.
(c) The application of any prepayment pursuant to this Section 2.11 shall be applied first, furtherto ABR Loans, that the Borrower may use an amount equal second, to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Eurodollar Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtthird, to cash collateralize L/C Obligations.
(d) Following the end of On each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year Business Day during which any Term Loans are outstandingFull Cash Dominion Period, the Borrower Administrative Agent shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shallapply, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined2.17(b), in which case the aggregate amount all funds credited to any applicable Collection Account as of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.10:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable Business Day (whether or not immediately available) and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof first to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided prepay any Protective Advances that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified thereinoutstanding, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied second to prepay the Term other Revolving Loans at the times provided (without a corresponding reduction in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign SubsidiaryCommitments).
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Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after on the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided thatreceived (or, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to ”, within three Business Days after such Net Proceeds are received), prepay or repurchase any Permitted Pari Passu Refinancing Debt outstanding Revolving Borrowings (without a corresponding reduction in the Aggregate Revolving Commitment) and, to the extent that the documentation governing Net Proceeds remain after such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof prepayment, deposit cash collateral in an account with the proceeds Administrative Agent in accordance with Section 2.04(i) with respect to outstanding Letters of such Prepayment EventCredit, in each case in an a principal amount not equal to exceed the product lesser of (x) the aggregate amount of such Net Proceeds outstanding Loans and Letters of Credit not previously cash collateralized in accordance with Section 2.04(i) and (y) a fractionthe aggregate amount of Net Proceeds received in respect of such Prepayment Event (such lesser amount, with respect to any Prepayment Event, the numerator “Applicable Net Proceeds”); provided that, in the case of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum a Prepayment Event described in clause (a) or (b) of the aggregate outstanding principal amount definition of Term Loans the term “Prepayment Event”, the prepayment of Revolving Borrowings and deposit of cash collateral described above shall be required only to the aggregate outstanding principal amount extent necessary (if at all) in order that the Borrower and its Subsidiaries shall not be required under the terms of any instrument governing unsecured Indebtedness of the Borrower or any of its Subsidiaries to prepay or redeem, or offer to prepay or redeem, such Permitted Pari Passu Refinancing Debtunsecured Indebtedness with the Applicable Net Proceeds from such Prepayment Event.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).[reserved]
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent (and in the case of prepayment of Swingline Loans, the Swingline Lenders) by telephone (confirmed by hand delivery, e-mail delivery or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (g) of this Section. If such notice is given by the Borrower Representative, the Borrowers shall make such prepayment, together with the Prepayment Fee, and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 2.16. Each such prepayment shall be applied to the Loans of the Term Lenders in accordance with their respective Applicable Percentage.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess[Reserved].
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf Within one (1) Business Day of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate receipt by any Loan Party of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event of any voluntary or involuntary sale or other Disposition of Term Loan Priority Collateral (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such including Net Proceeds to acquire real propertyof insurance or arising from a Casualty or condemnations and payments in lieu thereof), equipment other than any sale or other tangible assets Disposition from one Loan Party to be used in the business another Loan Party or any sale or other Disposition of the Borrower AVDC Equipment so long as no Event of Default exists or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing), then no prepayment the Borrowers shall be required pursuant to this paragraph in respect prepay the outstanding principal amount of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required Term Loans in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion one hundred percent (100%) of such Net Proceeds from a Prepayment Event described received by such Person in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance connection with such Section).
(e) Prior to any optional sales or mandatory prepayment of Borrowings under this Sectionother Dispositions, the Borrower shallprovided, subject to the next sentencethat, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar BorrowingCasualty with respect to the Eligible Real Estate, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepaymentCasualty with respect to the Equipment and FF&E, a reasonably detailed calculation of the amount of such prepayment; provided that so long as (A) if a notice no Default or Event of optional prepayment Default shall have occurred and is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07continuing or would result therefrom, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to Representative shall have given the Administrative Agent on or prior written notice of the Borrowers’ intention to apply such monies to the specified date costs of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders replacement of the applicable Class of properties or assets that are the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).subject
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $2,000,000 (or $500,000 or more, in the case of Swingline Loans) or, if less, the amount outstanding, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three not later than the Business Days Day next after the day date on which such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount Required Percentage of such Net Proceeds; provided that, in the case of any event Asset Disposition described in clause clauses (a) or and (b) of the definition of the term “Prepayment Event”Asset Disposition, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower or a Subsidiary intends to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real propertyacquire, equipment maintain, develop, construct, improve, upgrade or repair assets (other tangible assets than Equity Interests) to be used in the business of the Borrower or such Subsidiaries or to fund a Permitted Acquisition in accordance with the Restricted Subsidiaries terms of Section 6.04, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if contractually committed by the end of such initial 360-day period to be so applied within 360 days after the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire date of such real property, equipment or other tangible assets)contractual commitment, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; providedapplied or committed (and if any portion of Net Proceeds contractually committed to be applied within such 360-day period are not so applied within such period, further, that the Borrower may use a prepayment shall be required in an amount equal to such portion on the last day of such period). For purposes hereof, “Required Percentage” shall mean: (i) in the case of an Asset Disposition, 100%; (ii) in the case of a Debt Issuance, (A) if on the date of the relevant issuance, the Pro Forma Leverage Ratio is greater than 4.50 to 1.00, 100% or (B) if on the date of the relevant issuance, the Pro Forma Leverage Ratio is less than or equal to 4.50 to 1.00, but greater than 3.00 to 1.00, 50% or (C) if on the date of the relevant issuance, the Pro Forma Leverage Ratio is less than or equal to 3.00 to 1.00, 0% (it being understood that a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” Debt Issuance may be applied so as to prepay or repurchase any Permitted Pari Passu Refinancing Debt reduce such Pro Forma Leverage Ratio to the extent next lower level referred to above, and that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with Required Percentage for the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount remainder of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during based on such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Sectionnext lower level).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Hawaiian Telcom Communications, Inc.)
Prepayment of Loans. (a) The Borrower Company shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this SectionSection 2.12.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Prepayment Proceeds are received by or on behalf of the Borrower Company or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Company shall, within three not later than the fifth Business Days after Day following the day such Net Prepayment Proceeds are received, prepay Term Loan Borrowings in an aggregate amount equal to 100% of the amount of such Net Prepayment Proceeds; provided that the Company may use a portion of such Prepayment Proceeds to prepay or repurchase Permitted First Priority Refinancing Indebtedness, Incremental Pari Passu Debt or Incremental Equivalent Debt secured on a pari passu basis with the Obligations to the extent any applicable credit agreement, indenture or other agreement governing such Permitted First Priority Refinancing Indebtedness, Incremental Pari Passu Debt or Incremental Equivalent Debt so requires, in each case in an amount not to exceed the product of (x) the amount of such Prepayment Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted First Priority Refinancing Indebtedness, Incremental Pari Passu Debt or Incremental Equivalent Debt, as applicable, and the denominator of which is the sum of the outstanding principal amount of such Permitted First Priority Refinancing Indebtedness, Incremental Pari Passu Debt or Incremental Equivalent Debt, as applicable, and the outstanding principal amount of Term Loans; provided further that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower Company shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Company to the effect that the Borrower Company or the applicable Subsidiary intends to cause the Net Prepayment Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Prepayment Proceeds to acquire real property, equipment or other tangible assets to be used make an Investment in the business of the Borrower Company or the Restricted Subsidiaries and certifying that no Default has occurred and is continuingpermitted hereunder, then no prepayment shall be required pursuant to this paragraph in respect of the Net Prepayment Proceeds in respect of such event (or the portion of such Net Prepayment Proceeds specified in such certificate, if applicable) except to the extent of any such Net Prepayment Proceeds that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower Company or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire consummate an Investment with such real property, equipment or other tangible assetsPrepayment Proceeds), at which time a prepayment shall be required in an amount equal to such Net Prepayment Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(ec) Prior to any optional or mandatory prepayment of Borrowings under this SectionSection 2.12, the Borrower Company shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fd) of this SectionSection 2.12. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event Loans made at a time when Term Borrowings Loans of more than one Class remain are outstanding, the Borrower Company shall select Term Borrowings Loans to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, Loans pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, the amounts so allocable to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which Series may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A other Term Loans, Tranche B Term Loans or Loan Borrowings as provided in the applicable Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerFacility Amendment.
(fd) The relevant Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimilefacsimile of a Notice of Loan Prepayment) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder not later than 11:00 a.m., (i) three Business Days before the date of prepayment in the case of prepayment of a Eurodollar BorrowingEurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three (ii) four Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of prepayment of a Eurocurrency Borrowing denominated in an ABR BorrowingAlternative Currency (or five, not later than 11:00 a.m., New York City time, in the case of prepayment of a Eurocurrency Borrowing denominated in a Special Notice Currency) or (iii) on the Business Day of the date of prepaymentprepayment in the in the case of prepayment of a Base Rate Borrowing. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid prepaid, the applicable currency of such Borrowing and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings Loans pursuant to paragraph (a) of this Section 2.12 may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the such Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except (i) as necessary to apply fully the required amount of a mandatory prepaymentprepayment and (ii) partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.14.
(e) If the Administrative Agent notifies the Company at any time that the sum of the total Multicurrency Tranche Revolving Credit Exposures at such time exceeds an amount equal to the aggregate Multicurrency Tranche Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Multicurrency Tranche Revolving Loans amount at least equal to such excess. If the Administrative Agent notifies the Company at any time that the sum of the total Dollar Tranche Revolving Credit Exposures at such time exceeds an amount equal to the aggregate Dollar Tranche Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Dollar Tranche Revolving Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate in an aggregate amount at least equal to such excess; provided, however, that, the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.12(e) unless after the prepayment in full of the Dollar Tranche Revolving Loans the total Dollar Tranche Revolving Credit Exposures at such time exceed the Dollar Tranche Revolving Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(f) If the Administrative Agent notifies the Company at any time that the Revolving 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 two Business Days after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such Revolving Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.102.12, to the extent that any of or all of the Net Prepayment Proceeds of any event described in clause (a) Disposition by the Company or (b) of the definition of the term “Prepayment Event” by a Foreign any non-U.S. Subsidiary or Excess Cash Flow attributable to Foreign Subsidiariesof any casualty event from the Company or any non-U.S. Subsidiary either (A) is prohibited, in either case are prohibited restricted or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to the United States or distributed to or used for (B) would, in the benefit good faith judgment of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined Company, result in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have a material adverse tax consequences consequence to the Borrower and Company or any of its Subsidiaries (taken as a whole) with respect if applied to such amountrepay the Term Loans, in each case, the portion of such Net Prepayment Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 but 2.12(b). Instead, such amounts may be retained by the Company or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to promptly take, or to cause the distribution applicable Subsidiary to or otherwise using for promptly take, all actions reasonably required by the benefit applicable local law to permit such repatriation as long as such repatriation does not create a material adverse tax consequence) or, in the good faith judgment of the Borrower or the applicable Domestic SubsidiaryCompany, or the Borrower believes in good faith that such a material adverse tax consequence to the Company or any of its Subsidiaries would resultresult if such Prepayment Proceeds are applied to repay the Term Loans, and once such repatriation of any of such affected Net Prepayment Proceeds or Excess Cash Flow is permitted under the applicable local law or and, in the Borrower determines in good faith such repatriation would judgment of the Company, no longer would have such material adverse tax consequencesconsequence to the Company or any of its Subsidiaries would result if such Prepayment Proceeds are applied to repay the Term Loans, such repatriation will be promptly effected and such repatriated Net Prepayment Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriationDays) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal 2.12 to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)extent provided herein.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay (without premium or penalty except with respect to Initial Term B Loans as provided in Section 2.08(f), if applicable) any Borrowing, Borrowing in whole or in part, subject to prior written notice in the requirements form of this Sectiona Prepayment Notice substantially in the form of Exhibit C and signed by the Borrower, in a minimum amount equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that the foregoing shall not prohibit prepayment in an amount less than the denominations specified above if the amount of such prepayment constitutes the remaining outstanding balance of the Borrowing being prepaid.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three five (5) Business Days after the day such Net Proceeds are receivedreceived by the Borrower or such Restricted Subsidiary), prepay the Initial Term Borrowings B Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if ,” the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to or any Restricted Subsidiary may cause the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied invested within 360 365 days after receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the and its Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, then division, product line or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the such portion of such Net Proceeds specified in such certificate, if applicableso invested) except to the extent of any such Net Proceeds that have not been so applied invested by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party or binding commitment to acquire invest such real property, equipment or other tangible assetsNet Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedinvested (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section 2.08(b) does not exceed $10,000,000 in any fiscal year); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other Indebtedness that is secured by the Collateral on a pari passu basis with the Loans to the extent that such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such Permitted Pari Passu Refinancing Debt other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt other Indebtedness and the denominator of which is the sum of the aggregate outstanding principal amount of Initial Term B Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtother Indebtedness.
(dc) Following In the end event that the Borrower has Excess Cash Flow for any fiscal year of each Fiscal Yearthe Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2017, the Borrower shall shall, within five (5) Business Days after the date financial statements are required to be delivered pursuant to Section 5.01(a) for such fiscal year, prepay an aggregate principal amount of Initial Term Borrowings B Loans in an aggregate amount equal to the Specified excess of (x) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year over (y) the aggregate amount of (i) prepayments of Loans pursuant to Section 2.08(a) during such amount shall be reduced fiscal year and (ii) purchases of Loans pursuant to Section 9.04(e) by the Borrower or any Restricted Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any such purchase and not the par value of the Loans purchased by such Person) (in each case other than with the proceeds of Indebtedness and, in the case of any prepayment of Revolving Loans pursuant to Section 2.08(a), only to the extent accompanied by a permanent reduction of Revolving Credit Commitments on a dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph basis).
(ad) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In Mandatory prepayments shall be applied without premium or penalty. Notwithstanding the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansforegoing, any Initial Term B Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the BorrowerBorrower (the “Declined Proceeds”).
(f) In the event any Initial Term B Loans are subject to a Repricing Event prior to the date that is twelve months after the Effective Date, then each Lender whose Initial Term B Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Initial Term B Loans pursuant to Section 2.16, in each case in connection with such Repricing Event or which holds an Initial Term B Loan the All-in Yield of which is reduced as a result of such Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Initial Term B Loans so prepaid, repaid, assigned or repriced.
(g) In the event and on each occasion that the aggregate principal amount of Revolving Loans exceeds the total Revolving Credit Commitments, the Borrower shall prepay the Borrowings under the Revolving Facility in an aggregate principal amount equal to such excess.
(h) The Borrower shall notify (or, in the case of prepayments under Section 2.08(b) and (c), the Borrower shall use commercially reasonable efforts to notify) the Administrative Agent by telephone (confirmed or by hand delivery, e-mail or facsimilein accordance with Section 9.01 and in any event as confirmed by telecopy) of any prepayment of a Borrowing hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of such prepayment (or such later time as the Administrative Agent may agree), and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if prepaid. If a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinconsummation of any other transaction, in which case then such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymenteffective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid BorrowingRevolving Borrowing and each prepayment of a Term Loan Borrowing pursuant to Section 2.08(a) shall be applied to the remaining scheduled payments of the applicable Term Loans included in the prepaid Term Loan Borrowing in such order as directed by the Borrower, but absent such direction, in direct order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.10 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of any prepayment of Eurodollar Loans pursuant to this Section 2.08 on any day prior to the last day of an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a transaction described written request by any applicable Lender (which request shall set forth in clause reasonable detail the basis for requesting such amount) pay to the Administrative Agent for the account of such Lender any amounts required pursuant to Section 2.13. Each prepayment of Initial Term B Loans pursuant to Sections 2.08(b) and (c) shall be applied to the remaining scheduled amortization payments of the Initial Term B Loans in direct order of maturity.
(i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of if the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be paid by the Borrower prepaid pursuant to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a2.08(b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary would result in material adverse tax consequences or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law Requirement of Law (including financial assistance, assistance and corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiaryrelevant directors) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to Borrower, then the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to be applied to prepay the Term Loans at the times provided in this such amounts as required under Section 2.10 but may be retained by 2.08(b) and (c) for so long as such material tax consequences exist or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law Requirement of Law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequencesBorrower, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)applicable.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this SectionSection and payment of any amounts required under Section 2.16.
(b) In the event and on each such occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that (i) any Net Proceeds in respect of any Prepayment Event are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”)Subsidiary, the Borrower shall, within three Business Days after the day such Net Proceeds are received, (A) prepay Term Borrowings, (B) after the payment in full of such Term Borrowings, prepay Revolving Borrowings and (C) after repayment in full of such Revolving Borrowings, deposit cash collateral in an aggregate account with the Administrative Agent pursuant to Section 2.05(j), in an amount equal to 100% of the amount Prepayment Percentage of such Net ProceedsProceeds (or such lesser amount as shall be required to repay in full all such Borrowings and fully cash collateralize the LC Exposure); provided that, in the case of any event described in clause paragraph (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent within three Business Days after such Net Proceeds are received a certificate of a Responsible Financial Officer stating its intention to the effect that the Borrower intends to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 180 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, provided further that the Borrower may use an amount equal shall not be permitted to a portion of such make elections pursuant to the immediately preceding proviso with respect to Net Proceeds from a Prepayment Event described in clause (a) or (b) any fiscal year aggregating in excess of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt$5,000,000.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending on December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2007, the Borrower shall (i) prepay Term Borrowings, (ii) after the payment in full of such Term Borrowings, prepay Revolving Borrowings and (iii) after repayment in full of such Revolving Borrowings, deposit cash collateral in an aggregate account with the Administrative Agent pursuant to Section 2.05(j), in an amount equal to 50% of the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year (or such lesser amount as shall be reduced dollar-for-dollar by required to repay in full all such Borrowings and fully cash collateralize the aggregate amount LC Exposure) if the Leverage Ratio at the end of prepayments of Term Borrowings made pursuant such fiscal year shall have been greater than or equal to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments 1.00 to the extent financed from Excluded Sources1.00. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event is made at a time when Term Borrowings of more than one Class class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is shall be allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that, so long as and to the extent that any Tranche A Term Lender and Borrowings remain outstanding, any Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class Loan pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case (i) the aggregate amount of the prepayment so declined shall be offered to the Tranche B Lenders that would shall have been accepted such prepayment and applied to the Tranche B Term Loans of any such Lenders that accept such amount, pro rata based on the aggregate principal amounts of their outstanding Tranche B Term Loans, and (ii) any amount not accepted by such Tranche B Lenders shall be applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerBorrowings.
(f) Prior to any prepayment of Borrowings of any Class hereunder, the Borrower shall select the Borrowing or Borrowings of such Class to be prepaid and shall specify such selection in the notice of such prepayment pursuant to this paragraph. The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of a prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided provided, that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowings in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest and other amounts to the extent required by Section 2.12Sections 2.13 and 2.16 and paragraph (g) of this Section.
(g) All (i) prepayments Any prepayment of Tranche B Term Borrowings Loans effected on or prior to the six-month first anniversary of the Effective Date, in each case Date with the proceeds of a Repricing Transaction and substantially concurrent issuance or incurrence of Indebtedness under any credit or note facility (ii) amendments, amendments and restatements or other modifications including any replacement term loan facility effected pursuant to an amendment of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall Agreement) will be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayment if the Applicable Rate or similar interest rate spread applicable to such Indebtedness is, or upon satisfaction of any conditions could at any time be, less than the Applicable Rate that would apply to the Tranche B Term Borrowings so prepaid, Loans (based on the definition of Applicable Rate as in effect on the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPOEffective Date). Such fee shall be paid by the Borrower to the Administrative Agent, for the account accounts of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Investools Inc)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.14.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower Borrowers shall promptly prepay (and in any event within one Business Day prepay Day) the Revolving Borrowings Loans and/or LC Exposure (or, if no such Borrowings are outstanding, deposit cash collateral in the LC Collateral Account in an account with the Administrative Agent aggregate amount equal to such excess, in accordance with Section 2.04(i2.04(h)) ). In addition, in the event and on such occasion that the CapEx Exposure exceeds the CapEx Commitment, the Borrowers shall prepay the CapEx Loans and/or CapEx Term Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three Business Days immediately after the day such Net Proceeds are receivedreceived by any Loan Party or Subsidiary, prepay Term Borrowings the Obligations and cash collateralize the LC Exposure as set forth in Section 2.09(d) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent Lender a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 120 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except provided that to the extent of any such Net Proceeds that have not been so applied by the end of such 360120-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, provided further that the Borrower may Borrowers shall not be permitted to make elections to use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause to acquire (aor replace or rebuild) real property, equipment or other tangible assets (bexcluding inventory) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which Net Proceeds in any Term Loans are outstanding, the Borrower shall prepay Term Borrowings fiscal year in an aggregate amount equal in excess of $1,000,000.
(i) All prepayments required to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph Section 2.09(c) (a) of this Section during such Fiscal Year, excluding any such prepayments as to the extent financed they arise from Excluded Sources. Each prepayment pursuant to this paragraph Equipment purchased with CapEx Loans) shall be made on or before applied, first to prepay the date that is three Business Days after CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the date on which financial statements are delivered pursuant then outstanding amounts thereof), and second to Section 5.01(a) with respect to prepay the Fiscal Year for which Excess Cash Flow is being calculated Term Loans (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings Loans of more than one Class remain outstandingshall be outstanding at the time, shall be allocated among the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, Loans pro rata based on the aggregate principal amount amounts of outstanding Borrowings Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and fourth to cash collateralize outstanding LC Exposure.
(ii) All prepayments required to be made pursuant to Section 2.09(c) (as to the extent they arise from any assets (other than Equipment purchased with CapEx Loans) shall be applied, first to prepay the Term Loans (and in the event Term Loans of more than one Class shall be outstanding at the time, shall be allocated among the Term Loans pro rata based on the aggregate principal amounts of outstanding Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and second to prepay the CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the then outstanding amounts thereof), and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and third to cash collateralize outstanding LC Exposure; provided that all prepayments required to be made pursuant to Section 2.09(c) (with respect to Net Proceeds arising from any Tranche A Term Lender and Tranche B Term Lender (andcasualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding, to the extent provided they arise from casualties or losses to cash or Inventory) shall be applied, first, to prepay the Revolving Loans without a corresponding reduction in the Incremental Facility Amendment for any Class of Incremental Term LoansRevolving Commitment and second, any Lender that holds Incremental to cash collateralize outstanding LC Exposure, and third, to prepay the Term Loans of such Class(allocated and applied to subsequent scheduled repayments as set forth above) may elect, by notice and fourth to prepay the Administrative Agent CapEx Loans and/or CapEx Term Loan (allocated and applied to subsequent scheduled repayments as set forth above).
(e) The Borrower Representative shall notify the Lender by telephone (confirmed by hand deliveryfax) or through Electronic System, e-mail or facsimile) at least one Business Day prior to if arrangements for doing so have been approved by the required prepayment dateLender, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of under this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder : (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 10:00 a.m., New York City timeEastern Standard Time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR a CBFR Borrowing, not later than 11:00 10:00 a.m., New York City time, Eastern Standard Time on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments Commitment as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof2.07. Each partial prepayment of any Revolving Borrowing or Term Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.11 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.14.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In the event and on each such occasion that (i) the Aggregate Revolving Exposure exceeds the lesser of (A) the Aggregate Revolving CommitmentCommitment and (B) the Aggregate Borrowing Base, (ii) the U.S. Revolving Exposure exceeds the lesser of (A) the U.S. Revolving Commitments and (B) the U.S. Borrowing Base, or (iii) the Canadian Revolving Exposure exceeds the lesser of (A) the Canadian Revolving Commitments and (B) the Canadian Borrowing Base, the Borrower Applicable Borrowers shall within one Business Day prepay the applicable Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit LC Exposure and/or Swingline Loans or cash collateral collateralize LC Exposure in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.06(j)) , as applicable, in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event, the Applicable Borrowers shall, immediately after such Net Proceeds are received by any Loan Party or any Restricted Subsidiary, prepay the applicable Obligations and, if any Event of Default exists and is continuing, cash collateralize the LC Exposure as set forth in Section 2.11(d) below in an aggregate amount equal to (including by x) in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (bd) of the definition of the term “Prepayment Event”)” at any time Eligible Equipment is included in the Borrowing Base and no Cash Dominion Period is in effect, the Borrower shallEligible Equipment Amount and (y) in the case of all other Prepayment Events, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, and no Cash Dominion Period is in effect, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 270 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries applicable Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, then, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied to acquire, replace or rebuild such assets by (A) any U.S. Borrower, such Net Proceeds of a U.S. Borrower shall be applied by the Administrative Agent (1) first to reduce the outstanding principal balance of the U.S. Revolving Loans until paid in full and second to reduce the outstanding principal balance of the Canadian Revolving Loans if the applicable property or asset is owned by a U.S. Loan Party or (2) to reduce the outstanding principal balance of the Canadian Revolving Loans (in each case without a permanent reduction of the applicable Revolving Commitment) and upon such application, the Administrative Agent may in its Permitted Discretion, establish a Reserve against the Aggregate Borrowing Base, the U.S. Borrowing Base, and/or the Canadian Borrowing Base, as applicable, in an amount not to exceed the amount of such proceeds so applied, (B) except the Canadian Borrower, such Net Proceeds of the Canadian Borrower shall be applied by the Administrative Agent to reduce the outstanding balance of the Canadian Revolving Loans, and (C) any Loan Party that is not a Borrower, such Net Proceeds shall be deposited in a cash collateral account for the U.S Loan Parties or the Canadian Loan Parties, and in the case of either (A) or (B), thereafter, such funds shall be made available to the applicable Loan Parties as follows:
(1) the Borrower Representative shall request a Borrowing (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Applicable Revolving Lenders shall make such Borrowing or the Administrative Agent shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against any Borrowing, the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Borrowing; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-270 day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided. Notwithstanding the foregoing, further, that the Borrower may use an amount equal in no event will U.S. Obligations be repaid pursuant to a portion of this Section 2.11(c) if such Net Proceeds from are received by any Restricted Subsidiary that is an Excluded Subsidiary or a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing DebtForeign Subsidiary.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of All such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made amounts pursuant to paragraph Section 2.11(c) (a) of this Section during such Fiscal Yearas to any insurance or condemnation proceeds, excluding any such prepayments to the extent financed they arise from Excluded Sources. Each prepayment pursuant casualties or losses to this paragraph Equipment, Fixtures Inventory and real property) shall be made on or before the date applied, first to prepay any Protective Advances that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered outstanding, pro rata, and second to prepay the Revolving Loans (including Swingline Loans) without a corresponding reduction in compliance with such Section)the Revolving Commitments and, if an Event of Default exists and is continuing to cash collateralize outstanding LC Exposure. If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to Equipment, Fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined by the Administrative Agent, in its Permitted Discretion.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, The Borrower Representative shall notify the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender Administrative Agent (and, to the extent provided in the Incremental Facility Amendment for any Class case of Incremental Term Loansprepayment of a Swingline Loan, any Lender that holds Incremental Term Loans of such Classthe Swingline Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment dateor through Electronic System, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would if arrangements for doing so have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained approved by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand deliveryAgent, e-mail or facsimile) of any prepayment hereunder not later than (i) 10:00 a.m., Chicago time, (A) in the case of prepayment of a Eurodollar Non-Base Rate Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (iiB) in the case of prepayment of an ABR a Base Rate Borrowing, not later than 11:00 a.m., New York City time, on one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied first to Base Rate Borrowings and second to Non-Base Rate Borrowings and otherwise ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.13 and (ii) amendmentsbreak funding payments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Dateif any, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.16.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this Section.
(b) In Except for Overadvances permitted under Section 2.05, in the event and on each such occasion that the Aggregate total Revolving Exposure exceeds the lesser of (A) the aggregate Commitments or (B) the Aggregate Revolving CommitmentBorrowing Base, including as a result of any currency exchange fluctuation, the Borrower Borrowers shall within one Business Day prepay the Revolving Borrowings (orLoans, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event Event, the Borrowers shall, immediately after such Net Proceeds are received by any Loan Party, prepay the Obligations as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds, provided that, (including by 1) in the Administrative Agent as loss payee in respect case of any Prepayment Event event described in clause (ba) of the definition of the term “Prepayment Event”), ,” no prepayment under this Section shall be required unless and until the Borrower shall, within three Business Days aggregate amount of proceeds from all such Prepayment Events after the day such Net Proceeds are receivedEffective Date exceeds $1,000,000, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, (2) in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds (which period will be extended to up to a date not later than 360 days after the receipt of such Net Proceeds if within such 180 day period the applicable Loan Party enters into a binding contract to acquire, replace or rebuild), to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Specified Default has occurred and is continuing, then either (i) so long as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in respect of such event certificate or (or ii) if full cash dominion is in effect, if the portion of such Net Proceeds specified in such certificatecertificate are to be applied by (A) the Borrowers, if applicablethen such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Commitment) except and upon such application, the Administrative Agent shall establish a Reserve against the Aggregate Borrowing Base in an amount equal to the amount of such proceeds so applied and (B) any Loan Party that is not a Borrower, then such Net Proceeds shall be deposited in a cash collateral account maintained with the Administrative Collateral Agent and in either case, thereafter, such funds shall be made available to the applicable Loan Party as follows:
(1) the Borrower Representative shall request a Revolving Loan (specifying that the request is to use Net Proceeds pursuant to this Section) or the applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;
(2) so long as the conditions set forth in Section 4.02 have been met, the Lenders shall make such Revolving Loan or the Administrative Collateral Agent shall release funds from the cash collateral account; and
(3) in the case of Net Proceeds applied against the Revolving Loan, the Reserve established with respect to such proceeds shall be reduced by the amount of such Revolving Loan; provided that to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter 360 day period, if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assetsapplicable), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that and (3) in the Borrower may use an amount equal to a portion case of such Net Proceeds from a Prepayment Event any event described in clause (a) or (bc) of the definition of the term “Prepayment Event” arising from the issuance of any Qualified Equity Interests, if the Borrower Representative shall deliver to prepay the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Net Proceeds to voluntarily redeem or repurchase any Permitted Pari Passu Refinancing Debt 2009 Notes or 2010 Notes or to the prepayment of the Sidel Water Capital Lease, in each case to the extent then permitted pursuant to Section 6.09(b)(xi) hereof and certifying that no Default or Event of Default has occurred and is continuing, then (i) so long as full cash dominion is not in effect, no prepayment shall be required for 3 Business Days pursuant to this paragraph in respect of the Net Proceeds specified in such certificate, or (ii) if full cash dominion is in effect, such Net Proceeds shall be applied by the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Commitment) or (iii) 3 Business Days after receipt of such Net Proceeds to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment Net Cash Proceeds shall not have then been used to redeem or repurchase thereof with the proceeds of such Prepayment Event2009 Notes or 2010 Notes or to prepay the Sidel Water Capital Lease pursuant to Section 6.09(b)(xi), in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and shall be applied by the Administrative Agent (yother than any portion of Net Proceeds which would cause the aggregate UK Revolving Loans to be reduced below $10,000,000) a fraction, the numerator of which is to reduce the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum balance of the aggregate outstanding principal amount Revolving Loans (without a permanent reduction of Term Loans and the aggregate outstanding principal amount Commitment). For purposes of such Permitted Pari Passu Refinancing Debtthis Section 2.11(c) the 2009 Notes or 2010 Notes shall be deemed to be “redeemed” at the time that a Borrower or Restricted Subsidiary deposits with the trustee under the 2009 Indenture or 2010 Indenture, as applicable, the funds sufficient to redeem the applicable 2009 Notes or 2010 Notes.
(d) Following All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances and Overadvances that may be outstanding, pro rata, and second to prepay the Revolving Loans (including Swing Line Loans) without a corresponding reduction in the Commitment and, if full cash dominion is in effect pursuant to Section 7.3 of the U.S. Security Agreement and Section 7.3 of the Canadian Security Agreement or if an Event of Default has occurred and is continuing, to cash collateralize outstanding LC Exposure. Notwithstanding the foregoing, if any payment pursuant to this Section would require a payment on a day that is not the last day of an Interest Period and if such payment would otherwise require the payment of break funding amounts pursuant to Section 2.16, then (so long as no Event of Default has then occurred and is continuing) the Borrowers may deposit such required payments in a cash collateral account with the Administrative Collateral Agent, subject to the sole dominion and control of the Administrative Collateral Agent and make the required payment at the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)appropriate Interest Period.
(e) Prior to any optional or mandatory The Borrower Representative shall notify the Disbursement Agent (and in the case of prepayment of Borrowings under this Sectiona Swingline Loan, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fapplicable Swingline Lender) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand deliveryfacsimile or, e-mail or facsimile) at least one Business Day prior to in the required prepayment date, to decline all or any portion case of any prepayment of its Tranche A Term Canadian Swingline Loans and US Swingline Loans, Tranche B Term Loans or Incremental Term Loans by transmission of any a pdf file containing such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimilenotice) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing or CDOR Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Revolving Borrowing, a Canadian Prime Revolving Borrowing or an Overnight LIBO Revolving Borrowing, not later than 11:00 10:00 a.m., New York City timeLocal Time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.09. Promptly following receipt of any such noticenotice relating to a Revolving Borrowing, the Administrative Disbursement Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).contents
Appears in 1 contract
Samples: Credit Agreement (Cott Corp /Cn/)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.17), in an aggregate principal amount that is an integral multiple of the requirements of this SectionBorrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.11(a).
(b) In Subject to Sections 2.01(b) and (c) and Section 2.19(b), in the event and on each occasion that (i) the Aggregate Total Revolving Facility Exposure exceeds the Aggregate lesser of (x) the Total Revolving CommitmentFacility Commitments and (y) the Global Borrowing Base or (ii) the aggregate U.S. Revolving Facility Exposure exceeds the U.S. Sublimit, then the Borrower applicable Borrower(s) shall within one Business Day prepay promptly repay outstanding Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent Facility Loans and/or Cash Collateralize Revolving L/C Exposure in accordance with Section 2.04(i)2.05(j) in an aggregate amount equal to such excess; provided that, in each case, if such excess arises solely as a result of currency rate fluctuations, such repayment or Cash Collateralization, as the case may be, shall not be required to be made until the third Business Day after the Administrative Agent shall have delivered to the Borrowers written notice of such required prepayment or deposit.
(c) In the event and on each such occasion that any Net Proceeds are received by or on behalf as the Revolving L/C Exposure exceeds the Letter of Credit Sublimit, at the request of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”)Agent, the applicable Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings shall deposit Cash Collateral in an aggregate amount equal to 100% of account with the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Collateral Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicableSection 2.05(j) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtexcess.
(d) Following During the end continuance of an Availability Trigger Event, subject to Section 2.23, on each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstandingBusiness Day, the Borrower Administrative Agent shall prepay Term Borrowings in an aggregate amount equal apply, or cause to be applied, all funds credited to the Specified ECF Percentage Controlled Accounts on such Business Day, first to prepay Protective Advances and Overadvances that may be outstanding; second to prepay Swingline Loans that may be outstanding; third to any prepayment of Excess Revolving Facility Loans; fourth to pay any other Loan Document Obligation owing by any Borrower then due and payable, and fifth, if any Event of Default is outstanding at such time, to Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal YearCollateralize outstanding Revolving L/C Exposure and Overadvances, excluding any such prepayments to the extent financed from Excluded Sourcesrequired hereunder. Each prepayment pursuant to this paragraph Any such application of funds shall be made on or before (i) from Controlled Accounts of the date that is three Business Days after Domestic Loan Parties first in respect of Loan Document Obligations of the date on which financial statements are delivered pursuant to Section 5.01(aDomestic Loan Parties and second in respect of Loan Document Obligations of the Foreign Subsidiary Loan Parties and (ii) with from Controlled Accounts of the Foreign Subsidiary Loan Parties shall be made solely in respect to of Loan Document Obligations of the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)Foreign Subsidiary Loan Parties.
(e) Prior Subject to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid Sections 2.01(b) and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fc) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined2.19(b), in which case the aggregate amount of the prepayment event that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained net cash proceeds are received by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the U.S. Borrower or any applicable Domestic Subsidiary or pursuant to Section 6.05(l), the Borrowers shall promptly apply such net cash proceeds to repay outstanding Revolving Facility Loans, if the Borrower has determined in good faith that repatriation any (without reduction of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign SubsidiaryRevolving Facility Commitments).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Momentive Specialty Chemicals Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event that and on each occasion that on which the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event that and on each occasion that on which any Net Proceeds are received by or on behalf of Parent, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided , PROVIDED that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”", if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied event, within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower and the Subsidiaries or all of the Restricted Subsidiaries outstanding capital stock of an entity owning such assets, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) , PROVIDED that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, of their respective Borrowings in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds aggregate Tranche C Exposures exceed the Aggregate Revolving Commitmentaggregate Tranche C Commitments, the Borrower shall within one Business Day prepay Revolving Tranche C Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i)2.05(j) in an aggregate amount equal to such excess).
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings Loans (together with loans under the Credit Agreement (to the extent required to be prepaid in connection with such Prepayment Event) on a pro rata basis, except that (x) Net Proceeds with respect to LSE Disposition Prepayment Events or LSE Return of Capital Prepayment Events shall be applied first to prepay Tranche C Term Loans, and after all such loans have been prepaid and the obligations discharged, to prepay Term Loans under the Credit Agreement and (y) Net Proceeds with respect to Equity Issuance Prepayment Events shall be applied to prepay Tranche C Term Loans) in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, that in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to and the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause Subsidiaries apply the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied within 360 270 days after receipt of such Net Proceeds and at a time when no Default has occurred and is continuing, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries (provided that the Borrower has delivered to the Administrative Agent within three Business Days after such Net Proceeds are received a certificate of a Financial Officer stating its intention to do so and certifying that no Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360270-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that that, in the case of any sale, transfer or other disposition of the Trumbull Property prior to the second anniversary of the Effective Date, the Borrower may use an amount equal shall be permitted to a portion retain any Net Proceeds in respect of such Net Proceeds from a Prepayment Event described sale, transfer or other disposition that are not in clause (a) or (b) excess of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt$15,000,000.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2006, the Borrower shall prepay Term Borrowings Loans (together with loans under the Credit Agreement (to the extent required to be prepaid with Excess Cash Flow) on a pro rata basis) in an aggregate amount equal to the Specified ECF Required Percentage of Excess Cash Flow for such Fiscal Year; fiscal year, provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings Loans made pursuant to paragraph (aSection 2.11(a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned conditional upon the occurrence effectiveness of one other credit facilities or more events specified thereinthe receipt of the proceeds from the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymentdate) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments or, when taken together with the aggregate outstanding principal amount of the Term Loans, exceeds the Borrowing Base then in effect, the Borrower Borrowers shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower Company or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in that at any time after the case aggregate amount of any event Term Borrowings prepaid based upon events described in clause under paragraph (a) or (b) of the definition of the term “"Prepayment Event”" is $200,000,000 or more, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect only 50% of the Net Proceeds received in respect of such any event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause under paragraph (a) or (b) of the definition of the term “"Prepayment Event” Event " shall be required to be applied to prepay or repurchase any Permitted Pari Passu Refinancing Debt to Term Borrowings, except in the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires case of such a prepayment Prepayment Event in which greater than 10% of the aggregate consideration is received by the Company or repurchase thereof with any Subsidiary in a form other than cash, in which case the proceeds amount of Loans required to be prepaid in respect of such Prepayment Event shall be increased by the present value (based on reasonable assumptions) of the portion of such non-cash consideration in excess of 10% of the total value of all the consideration received in respect of such Prepayment Event, in each case in up to an amount not to exceed the product of (x) the amount 50% of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debttotal value.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, Company shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower Borrowers shall first apply all such prepayments to Interim Term Borrowings until all Interim Term Borrowings have been paid in full and shall then select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any that, so long as Tranche A Term Lender and Loans are outstanding, any Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained applied to prepay Tranche A Term Borrowings (and if the aggregate amount of declined payments is greater than the aggregate remaining amount of Tranche A Term Loans, declinations shall be allocated among the Tranche B Lenders on a pro rata basis based upon the respective amounts of their outstanding Tranche B Term Loans). Each voluntary prepayment of the Tranche B Term Loans of any Lender under paragraph (a) above, and each mandatory prepayment of the Tranche B Term Loans of any Lender under paragraph (c) above shall be accompanied by a premium payment in cash of (i) 2.00% of the Borroweraggregate principal amount of the Tranche B Term Borrowings being prepaid, if such payment is made on or prior to the first anniversary of the Effective Date and (ii) 1.00% of the aggregate principal amount of the Tranche B Term Borrowings being prepaid, if such payment is made thereafter but on or prior to the second anniversary of the Effective Date.
(fe) The Borrower Company shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid, the premiums to be paid on any Tranche B Term Borrowings to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked or extended if such notice of termination is revoked or extended in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”" (other than the sale, transfer or other disposition of Receivables in connection with a Permitted Receivables Financing), if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings, the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2000, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings, Tranche B Term Borrowings, Tranche C Term Borrowings and Tranche B D Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; , provided that, so long as and to the extent that any Tranche A Term Lender and Borrowing remains outstanding, any Tranche B Term Lender, Tranche C Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any or Tranche D Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A B Term Loans, Tranche B C Term Loans or Incremental Tranche D Term Loans of any such Class Loans, as applicable, pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A B Term Loans, Tranche B C Term Loans or Incremental Tranche D Term Loans of any such Class Loans, as applicable, but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 10:00 a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; , provided that (A) that, if a notice of optional prepayment of any Loans is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepaymentprepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(g) All (i) prepayments In the event of and on each occasion of any prepayment of any Tranche B Term Borrowings effected Borrowing, Tranche C Term Borrowing or Tranche D Term Borrowing pursuant to Section 2.11(a) or (c), the Borrower shall pay to the Tranche B Lenders, Tranche C Lenders and Tranche D Lenders whose Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans, as applicable, are being prepaid a prepayment premium equal to (A) if such prepayment (or the date on which such prepayment is required to be made) occurs on or prior to the six-month anniversary of date that is one year after the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.002.0% of the aggregate principal amount of the Tranche B Term Borrowings so prepaidLoans, in Tranche C Term Loans or Tranche D Term Loans, as applicable, being prepaid or (B) if such prepayment (or the case of a transaction described in clause (idate on which such prepayment is required to be made) of this paragraphoccurs more than one year after the Effective Date but on or prior to the date that is two years after the Effective Date, or 1.001.0% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term LendersLoans, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Tranche C Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so longor Tranche D Term Loans, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiaryapplicable, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)being prepaid.
Appears in 1 contract
Samples: Credit Agreement (SCG Holding Corp)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.14.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate lesser of (A) the Revolving CommitmentCommitment and (B) the Borrowing Base, the Borrower Borrowers shall promptly prepay (and in any event within one Business Day prepay Day) the Revolving Borrowings Loans and/or LC Exposure (or, if no such Borrowings are outstanding, deposit cash collateral in the LC Collateral Account in an account with the Administrative Agent aggregate amount equal to such excess, in accordance with Section 2.04(i2.04(h)) ). In addition, in the event and on such occasion that the CapEx Exposure exceeds the CapEx Commitment, the Borrowers shall prepay the CapEx Loans and/or CapEx Term Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three Business Days immediately after the day such Net Proceeds are receivedreceived by any Loan Party or Subsidiary, prepay Term Borrowings the Obligations and cash collateralize the LC Exposure as set forth in Section 2.09(d) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent Lender a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 120 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except provided that to the extent of any such Net Proceeds that have not been so applied by the end of such 360120-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real propertyperiod, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, provided further that the Borrower may Borrowers shall not be permitted to make elections to use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause to acquire (aor replace or rebuild) real property, equipment or other tangible assets (bexcluding inventory) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which Net Proceeds in any Term Loans are outstanding, the Borrower shall prepay Term Borrowings fiscal year in an aggregate amount equal in excess of $1,000,000.
(i) All prepayments required to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph Section 2.09(c) (a) of this Section during such Fiscal Year, excluding any such prepayments as to the extent financed they arise from Excluded Sources. Each prepayment pursuant to this paragraph Equipment purchased with CapEx Loans) shall be made on or before applied, first to prepay the date that is three Business Days after CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the date on which financial statements are delivered pursuant then outstanding amounts thereof), and second to Section 5.01(a) with respect to prepay the Fiscal Year for which Excess Cash Flow is being calculated Term Loans (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings Loans of more than one Class remain outstandingshall be outstanding at the time, shall be allocated among the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, Loans pro rata based on the aggregate principal amount amounts of outstanding Borrowings Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and fourth to cash collateralize outstanding LC Exposure.
(ii) All prepayments required to be made pursuant to Section 2.09(c) (as to the extent they arise from any assets (other than Equipment purchased with CapEx Loans) shall be applied, first to prepay the Term Loans (and in the event Term Loans of more than one Class shall be outstanding at the time, shall be allocated among the Term Loans pro rata based on the aggregate principal amounts of outstanding Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and second to prepay the CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the then outstanding amounts thereof), and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and third to cash collateralize outstanding LC Exposure; provided that all prepayments required to be made pursuant to Section 2.09(c) (with respect to Net Proceeds arising from any Tranche A Term Lender and Tranche B Term Lender (andcasualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding, to the extent provided they arise from casualties or losses to cash or Inventory) shall be applied, first, to prepay the Revolving Loans without a corresponding reduction in the Incremental Facility Amendment for any Class of Incremental Term LoansRevolving Commitment and second, any Lender that holds Incremental to cash collateralize outstanding LC Exposure, and third, to prepay the Term Loans of such Class(allocated and applied to subsequent scheduled repayments as set forth above) may elect, by notice and fourth to prepay the Administrative Agent CapEx Loans and/or CapEx Term Loan (allocated and applied to subsequent scheduled repayments as set forth above).
(e) The Borrower Representative shall notify the Lender by telephone (confirmed by hand deliveryfax) or through Electronic System, e-mail or facsimile) at least one Business Day prior to if arrangements for doing so have been approved by the required prepayment dateLender, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of under this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder : (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 10:00 a.m., New York City timeEastern Standard Time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR a CBFR Borrowing, not later than 11:00 10:00 a.m., New York City time, Eastern Standard Time on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments Commitment as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof2.07. Each partial prepayment of any Revolving Borrowing or Term Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.11 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.14.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay (without premium or penalty except with respect to Initial Term B-1 Loans as provided in Section 2.08(e), if applicable) any Borrowing, Borrowing of any Class in whole or in part, subject to the requirements prior notice in accordance with clause (d) of this Section, in a minimum amount equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that the foregoing shall not prohibit prepayment in an amount less than the denominations specified above if the amount of such prepayment constitutes the remaining outstanding balance of the Borrowing being prepaid.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three five (5) Business Days after the day such Net Proceeds are received) by the Borrower or such Restricted Subsidiary, prepay Term Borrowings Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if ,” the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to or any Restricted Subsidiary may cause the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied invested within 360 365 days after receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the and its Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, then division, product line or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the such portion of such Net Proceeds specified in such certificate, if applicableso invested) except to the extent of any such Net Proceeds that have not been so applied invested by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party or binding commitment to acquire invest such real property, equipment or other tangible assetsNet Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedinvested (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section 2.08(b) does not exceed $10,000,000 in any fiscal year); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other Indebtedness that is secured by the Collateral on a pari passu basis with the Loans to the extent that such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such Permitted Pari Passu Refinancing Debt other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt other Indebtedness and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtother Indebtedness.
(dc) Following In the end event that the Borrower has Excess Cash Flow for any fiscal year of each Fiscal Yearthe Borrower, commencing with the Fiscal Year fiscal year ending December March 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2018, the Borrower shall shall, within five (5) Business Days after the date financial statements are required to be delivered pursuant to Section 5.01(a) for such fiscal year, prepay an aggregate principal amount of Term Borrowings Loans in an aggregate amount equal to the Specified excess of (x) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year over (y) the aggregate amount of (i) prepayments of Loans pursuant to Section 2.08(a) during such amount shall be reduced fiscal year and (ii) purchases of Loans pursuant to Section 9.04(e) by the Borrower or any Restricted Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any such purchase and not the par value of the Loans purchased by such Person) (in each case other than with the proceeds of long-term Indebtedness and, in the case of any prepayment of Revolving Loans pursuant to Section 2.08(a), only to the extent accompanied by a permanent reduction of Revolving Credit Commitments on a dollar-for-dollar by basis); provided, provided that no such prepayment shall be made if the aggregate prepayment amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment calculated pursuant to this paragraph shall clause (c) would be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later less than the last day on which such financial statements may be delivered in compliance with such Section)$5,000,000.
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In Amounts required to be applied to prepay Term Loans pursuant to clause (b) or (c) above (other than from the event Net Proceeds of any mandatory prepayment Refinancing Term Loans or Refinancing Notes which shall be applied to the Class or Classes of Term Borrowings in respect Loans selected by the Borrower) shall be applied on a pro rata basis to each outstanding Class of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, Loans based on the Borrower shall select Term Borrowings to be prepaid so that the aggregate then outstanding amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Loans of each Class (except, with respect to any Other Term Borrowings andLoans, to the extent provided in the applicable Incremental Facility Amendment, Extension Amendment for any Class of Incremental or Refinancing Amendment establishing such Other Term Loans, the Borrowings of Loans provides that such Class, Other Term Loans will participate on a less than pro rata based on basis) Mandatory prepayments shall be applied without premium or penalty. Notwithstanding the aggregate principal amount of outstanding Borrowings of each such Class; provided that foregoing, any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by written notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(e) In the event any Initial Term B-1 Loans are subject to a Repricing Event prior to the date that is six months after the Amendment No. 1 Effective Date, then each Lender whose Initial Term B-1 Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Initial Term B-1 Loans pursuant to Section 2.16, in each case in connection with such Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Initial Term B-1 Loans so prepaid, repaid or assigned.
(f) In the event and on each occasion that the aggregate principal amount of Revolving Loans exceeds the total Revolving Credit Commitments, the Borrower shall prepay the Borrowings under the Revolving Facility in an aggregate principal amount equal to such excess.
(g) The Borrower shall notify the Administrative Agent by telephone (confirmed or by hand delivery, e-mail or facsimilein accordance with Section 9.01 and in any event as confirmed by telecopy) in writing of any prepayment of a Borrowing hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of such prepayment (or such later time as the Administrative Agent may agree), and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.1:00 p.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if prepaid. If a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinconsummation of any other transaction, in which case then such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymenteffective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid BorrowingRevolving Borrowing and each prepayment of a Term Loan Borrowing pursuant to Section 2.08(a), (b) or (c) shall be applied to the remaining scheduled payments of the applicable Term Loans included in the prepaid Term Loan Borrowing in such order as directed by the Borrower, but absent such direction, in direct order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.10 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) any prepayment of Eurodollar Loans pursuant to this paragraphSection 2.08 on any day prior to the last day of an Interest Period applicable thereto, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendmentBorrower shall, amendment and restatement or other modification, in the case promptly after receipt of a transaction described written request by any applicable Lender (which request shall set forth in clause (iireasonable detail the basis for requesting such amount) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower pay to the Administrative Agent, Agent for the account of the Tranche B Term Lenders, on the date of such prepaymentLender any amounts required pursuant to Section 2.13.
(h) Notwithstanding the foregoing, if the Borrower reasonably determines in good faith that any other provisions of this amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a2.08(b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary would result in material adverse tax consequences or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law Requirement of Law (including financial assistance, assistance and corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiaryrelevant directors) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to Borrower, then the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to be applied to prepay the Term Loans at the times provided in this such amounts as required under Section 2.10 but may be retained by 2.08(b) and (c) for so -50- long as such material tax consequences exist or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law Requirement of Law will not permit repatriation or to the distribution Borrower, as applicable.
(i) Notwithstanding the anything in this Section 2.08 to or otherwise using for the benefit contrary, in the event that any Term Loan of any Lender is to be repaid on any date from the proceeds of other Term Loans to be funded on such date then, if agreed to by the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and Lender in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) writing provided to the prepayment Administrative Agent, all or any portion of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount Loan of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes Lender that would have been payable or reserved against if repaid from the proceeds of such Net Proceeds or Excess Cash Flow had been repatriated other Term Loans may, instead, be converted on a “cashless roll” basis into a like principal amount of such other Term Loan.
(or, if less, j) The Borrower shall prepay all Initial Term B Loans that are not Converted Initial Term B Loans on the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Amendment No. 1
Appears in 1 contract
Samples: Credit Agreement (Integrated Device Technology Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay (without premium or penalty except with respect to Initial Term B Loans as provided in Section 2.08(f), if applicable) any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (i) of this SectionSection 2.08, in a minimum amount equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that the foregoing shall not prohibit prepayment in an amount less than the denominations specified above if the amount of such prepayment constitutes the remaining outstanding balance of the Borrowing being prepaid.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three five (5) Business Days after the day such Net Proceeds are receivedreceived by the Borrower or such Restricted Subsidiary), prepay the Initial Term Borrowings B Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if ,” the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to or any Restricted Subsidiary may cause the Net Proceeds from such event (or a portion thereof specified in such certificatethereof) to be applied invested within 360 365 days after receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the and its Restricted Subsidiaries and certifying that no Default has occurred and is continuing(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, then division, product line or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the such portion of such Net Proceeds specified in such certificate, if applicableso invested) except to the extent of any such Net Proceeds that have not been so applied invested by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party or binding commitment to acquire invest such real property, equipment or other tangible assetsNet Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedinvested (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section 2.08(b) does not exceed $10,000,000 in any fiscal year of Borrower); provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt other Indebtedness that is secured by the Collateral on a pari passu basis with the Loans to the extent that such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such Permitted Pari Passu Refinancing Debt other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt other Indebtedness and the denominator of which is the sum of the aggregate outstanding principal amount of Initial Term B Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debtother Indebtedness.
(dc) Following In the end event that the Borrower has Excess Cash Flow for any fiscal year of each Fiscal Yearthe Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2018, the Borrower shall shall, within five (5) Business Days after the date financial statements are required to be delivered pursuant to Section 5.01(a) for such fiscal year, prepay an aggregate principal amount of Initial Term Borrowings B Loans in an aggregate amount equal to the Specified excess of (x) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that fiscal year over (y) the aggregate amount of (i) prepayments of Loans pursuant to Section 2.08(a) during such amount shall be reduced fiscal year and (ii) purchases of Loans pursuant to Section 9.04(f) by the Borrower or any Restricted Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any such purchase and not the par value of the Loans purchased by such Person) (in each case other than with the proceeds of Indebtedness and, in the case of any prepayment of Revolving Loans pursuant to Section 2.08(a), only to the extent accompanied by a permanent reduction of Revolving Credit Commitments on a dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph basis).
(ad) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this SectionSection 2.08, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this SectionSection 2.08. In Mandatory prepayments shall be applied without premium or penalty. Notwithstanding the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loansforegoing, any Initial Term B Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section 2.08 (other than an optional prepayment pursuant to paragraph (a) of this Section, Section 2.08 or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the Borrower.
(f) In the event any Initial Term B Loans are subject to a Repricing Event prior to the date that is six months after the Initial Term B Termination Date, then each Lender whose Initial Term B Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Initial Term B Loans pursuant to Section 2.16, in each case in connection with such Repricing Event or which holds an Initial Term B Loan the All-in Yield (excluding for this purpose upfront fees and original issue discount on the Initial Term B Loans) of which is reduced as a result of a Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Initial Term B Loans so prepaid, repaid, assigned or repriced.
(g) If at any time, the Total Revolving Credit Exposure exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall forthwith prepay first, Revolving Loans, and second Cash Collateralize the outstanding amount of Letter of Credit Usage at the Agreed L/C Cash Collateral Amount, to the extent necessary so that the Total Revolving Credit Exposure shall not exceed the Revolving Credit Commitments then in effect (or, in the case of Letter of Credit Usage, such amounts are fully Cash Collateralized in compliance with the Agreed L/C Cash Collateral Amount).
(h) If, after giving effect to any prepayment of the Revolving Credit Commitments that results in a reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Credit Commitments, such sublimit shall be automatically reduced by the amount of such excess (including a corresponding reduction to each Issuing Bank’s Letter of Credit Issuer Sublimit (ratably) unless otherwise agreed by the Borrower and each applicable Issuing Bank).
(i) The Borrower shall notify the Administrative Agent by telephone (confirmed or by hand delivery, e-mail or facsimilein accordance with Section 9.01 and in any event as confirmed by telecopy) of any prepayment of a Borrowing hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of such prepayment (or such later time as the Administrative Agent may agree), and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if prepaid. If a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinconsummation of any other transaction, in which case then such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepaymenteffective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid BorrowingRevolving Borrowing and each prepayment of a Term Loan Borrowing pursuant to Section 2.08(a) shall be applied to the remaining scheduled payments of the applicable Term Loans included in the prepaid Term Loan Borrowing in such order as directed by the Borrower, but absent such direction, in direct order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.10 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of any prepayment of Eurodollar Loans pursuant to this Section 2.08 on any day prior to the last day of an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a transaction described written request by any applicable Lender (which request shall set forth in clause reasonable detail the basis for requesting such amount) pay to the Administrative Agent for the account of such Lender any amounts required pursuant to Section 2.13. Each prepayment of Initial Term B Loans pursuant to Sections 2.08(b) and (ic) of this paragraph, or 1.00% shall be applied to the remaining scheduled amortization payments of the aggregate principal amount Initial Term B Loans in direct order of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause maturity.
(iij) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of if the Borrower or reasonably determines in good faith that the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds payment of any event described in clause (aamounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Section 2.08(b) or (bc) of the definition of the term “Prepayment Event” by a Foreign Subsidiary would result in material adverse tax consequences or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law Requirement of Law (including financial assistance, assistance and corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiaryrelevant directors) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to Borrower, then the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will shall not be required to be applied to prepay the Term Loans at the times provided in this such amounts as required under Section 2.10 but may be retained by 2.08(b) and (c) for so long as such material tax consequences exist or the applicable Foreign Subsidiary so long, but only so long, as the applicable local law Requirement of Law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequencesBorrower, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)applicable.
Appears in 1 contract
Samples: Credit Agreement (Shutterfly Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days immediately after the day such Net Proceeds are received, prepay Tranche A Term Borrowings in accordance with paragraph (e) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiary Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied (such Net Proceeds or portion thereof, the "Reinvestment Amount"), within 360 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiary Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fe) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fe) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 12:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 12:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any BorrowingBorrowing of any Class of Loans, in whole or in part, as selected by the Borrower in its sole discretion and subject to the requirements of this SectionSection 2.11 and the payment of any premium as provided in Section 2.12(c).
(b) In the event and on each such occasion that the Aggregate aggregate Revolving Exposure exceeds Exposures exceed the Aggregate aggregate Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Collateral Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event Event, the Borrower shall, promptly after such Net Proceeds are received by Holdings, the Borrower or such Restricted Subsidiary (including and in any event not later than the fifth Business Day after such Net Proceeds are received), prepay Term Loan Borrowings in an amount equal to the Asset Sale Percentage of such Net Proceeds; provided that to the extent required by the Administrative Agent as loss payee in respect terms of any Prepayment Event Permitted Debt that is secured by the Collateral on a pari passu basis with the Obligations, the Borrower may, in lieu of prepaying Term Loans with such portion of the Net Proceeds of any prepayment event described in clause (a) or clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day apply a portion of such Net Proceeds are received, prepay (based on the respective principal amounts at such time of (A) such Permitted Debt and (B) the Term Borrowings in an aggregate amount equal Loans) to 100% of the amount of repurchase or redeem such Net ProceedsPermitted Debt; provided that, further that in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings, the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 365 days after receipt of such Net Proceeds Proceeds, to acquire or replace real property, equipment or other tangible assets (excluding inventory) to be used in the business of Holdings, the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied or contractually committed in writing by the end of such 360365-day period (or within a period of 180 days thereafter and, if by so contractually committed in writing but not applied prior to the end of such initial 360365-day period period, applied within 180 days of the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire end of such real property, equipment or other tangible assetsperiod), at promptly after which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2025, the Borrower shall prepay Term Loan Borrowings in an aggregate amount equal to the Specified excess of (A) the ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by year over (B) the aggregate sum of (x) the principal amount of prepayments of Term Borrowings made Loans prepaid pursuant to paragraph Section 2.11(a) and the amount expended to prepay Term Loans pursuant to Section 2.11(i), in each case, during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (aB) for any other year, following the last day of such year and prior to the date of such prepayment, (y) the amount expended to prepay Permitted Debt that is secured on a pari passu basis with the Obligations during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment and (z) the amount of Loans under Revolving Commitments, Extended Revolving Commitments and Incremental Revolving Commitments that are repaid during such year or, at the option of the Borrower, and without duplication of amounts included in this clause (B) for any other year, following the last day of such year and prior to the date of such prepayment, in the case of this Section during such Fiscal Yearclause (z), excluding any such prepayments to the extent financed from Excluded Sourcesaccompanied by a reduction in the related commitment and, in the case of each of the foregoing clauses (x), (y) and (z), other than any repayment in connection with a refinancing. Each prepayment pursuant to this paragraph Section 2.11(d) shall be made on or before the date that is three within five (5) Business Days after of the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated and the related Compliance Certificate has been delivered pursuant to Section 5.01(c) (and in any event not later than within 95 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Each prepayment of Term Loans pursuant to clauses (a), (c) or (d) of this Section 2.11 (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as selected by the Borrower in its sole discretion in the notice delivered pursuant to clause (f) below, to any Class or Classes of Term Loans, (B) shall be applied to scheduled amortization with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.10(a) and (C) shall be paid to the Class of Lenders in accordance with their respective pro rata share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (f) below. Notwithstanding clause (A) above, prepayments with Net Proceeds from any event described in clause (c) of the definition of the term “Prepayment Event” shall be applied to the Class or Classes of Term Loans selected by the Borrower. Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to shall determine in accordance with the next sentence, select foregoing provisions of this Section 2.11 the Borrowing or Borrowings of each applicable Class to be prepaid and shall specify such selection determination in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower2.11.
(f) The Borrower shall notify the Administrative Agent by facsimile or telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Term Benchmark Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, time on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid, the Class of Loans to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that that, (Ai) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (Bii) otherwise if a notice of prepayment of Term Borrowings pursuant to paragraph (a) of is given under this Section may state that 2.11, such notice is of prepayment may be conditioned upon the occurrence effectiveness of one other credit facilities or more events specified thereinthe closing of a refinancing transaction, in which case a sale of all or substantially all of the assets of the Borrower and its Subsidiaries or a Change of Control and such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans of each applicable Lender included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13 but shall in no event include premium or penalty.
(g) All Each Term Lender may reject all or a portion of its pro rata share of any mandatory prepayment (isuch declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (c) and (d) of this Section 2.11 (except in respect of mandatory prepayments made with Net Proceeds from any event described in clause (c) of Tranche B Term Borrowings effected on or prior the definition of the term “Prepayment Event”) by providing written notice (each, a “Rejection Notice”) to the six-month anniversary Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Xxxxxx’s receipt of notice from the Effective Date, in each case with Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B mandatory repayment of Term Borrowings so prepaid, in Loans to be rejected by such Lender. If a Lender of Term Loans fails to deliver a Rejection Notice to the case of a transaction described in clause (i) of this paragraph, Administrative Agent within the time frame specified above or 1.00% of such Rejection Notice fails to specify the aggregate principal amount of Tranche B the Term Borrowings affected by Loans to be rejected, any such amendment, amendment failure will be deemed an acceptance of the total amount of such mandatory prepayment of its Term Loans. Any Declined Proceeds shall be offered to the Lenders of Term Loans not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of each such Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the time and restatement or other modification, in the case manner specified by the Administrative Agent). To the extent such non-declining Lenders of a transaction described in clause (ii) its Term Loans elect to decline their pro rata shares of this paragraph. Notwithstanding the foregoingsuch Declined Proceeds, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee any Declined Proceeds remaining thereafter shall be paid retained by the Borrower to (such remaining Declined Proceeds, the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment“Borrower Retained Prepayment Amounts”).
(h) Notwithstanding any other provisions of this Section 2.102.11, (i) to the extent that any of or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” disposition by a Foreign Subsidiary (“Foreign Disposition”), the Net Proceeds of any casualty event from a Foreign Subsidiary (a “Foreign Casualty Event”) or Excess Cash Flow attributable to Foreign Subsidiaries, in either case Subsidiaries are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences United States, an amount equal to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary 2.11 so long, but only so long, as the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (the Borrower or hereby agreeing to use commercially reasonable efforts to cause the applicable Domestic SubsidiaryForeign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and (ii) to the extent that the repatriation of any of or all the Borrower believes Net Proceeds of any Foreign Disposition or any Foreign Casualty Event or Excess Cash Flow attributable to Foreign Subsidiaries would have adverse tax consequences (as reasonably determined in good faith that by the Borrower) with respect to such material adverse tax consequence would resultNet Proceeds or Excess Cash Flow, an amount equal to such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.11; provided that, if and once to the extent any such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or at any time during the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequencesone (1) year period immediately following the date on which the applicable mandatory prepayment pursuant to this Section 2.11 was required to be made, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 2.11 to the extent provided herein. For the avoidance of doubt, the non-application of any Net Proceeds pursuant to this Section 2.11(h) shall not constitute a Default or an Event of Default.
(provided that no such i) In addition to any prepayment of the Term Loans pursuant to this Section 2.10 shall be required in 2.11(a), Holdings, the case Borrower or any Subsidiary may at any time prepay Term Loans of any Class of any Lender at such Net Proceeds price or Excess Cash Flow the repatriation of which prices as may be mutually agreed by Holdings, the Borrower believes in good faith would result in material adverse tax consequencesor such Subsidiary, if on or before the date one hand, and such Lender, on which such Net Proceeds so retained would otherwise have been required the other hand (which, for avoidance of doubt, may be a prepayment at a discount to be applied to reinvestments or prepayments par), pursuant to paragraph (cindividually negotiated transactions or offers to prepay that are open to Lenders of Term Loans of any Class(es) of this Section (selected by Holdings, the Borrower or such Excess Cash Flow would have been Subsidiary so required if it were Net Proceeds), long as (x) immediately after giving effect to any such prepayment pursuant to this Section 2.11(i), no Event of Default has occurred and is continuing, (y) no proceeds of Revolving Loans are utilized to fund any such prepayment and (z) Holdings, the Borrower applies or such Subsidiary, as applicable, and each Lender whose Term Loans are to be prepaid pursuant to this Section 2.11(i) execute and deliver to the Administrative Agent an amount equal to instrument identifying the amount of Term Loans of each Class of each such Net Proceeds Lender to be so prepaid, the date of such prepayment and the prepayment price therefor. The principal amount of any Term Loans of any Class prepaid pursuant to this paragraph (i) shall reduce remaining scheduled amortization for such Class of Term Loans on a pro rata basis.
(j) Notwithstanding anything in this Agreement to the contrary, in the event that on any date, an outstanding Term Loan of a Lender would otherwise be repaid or Excess Cash Flow prepaid from the proceeds of any new Term Loans to be established on such reinvestments or prepayments as date then, if such Net Proceeds or Excess Cash Flow had been received agreed to by the Borrower rather than and such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied Lender and notified to the repayment Administrative Agent, such outstanding Term Loan of Indebtedness such Lender may be converted on a “cashless” basis into a new Term Loan of a Foreign Subsidiary)the applicable Class being established on such date.
Appears in 1 contract
Samples: Credit Agreement (Concentra Group Holdings Parent, Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.04(j)) in an aggregate amount equal to such excess. In the event and on each occasion that the sum of the Revolving Exposures and the outstanding Term Loans exceeds the Senior Bank Debt Basket Amount, the Borrower shall prepay Borrowings in an aggregate amount sufficient to eliminate such excess. In the event and on each occasion that the sum of the aggregate Euro Revolving Exposures exceeds 105% of the Euro Sublimit, the Borrower shall repay Revolving Borrowings denominated in Euro in an aggregate amount sufficient to eliminate such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three not later than the second Business Days Day after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days twelve months after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets Telecommunications Assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360twelve-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)month period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2002, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class both Classes remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term B Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, i ts Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the 29 aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrowerapplied to prepay Tranche A Term Borrowings.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked revo ked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.07(d). Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section, provided that Canadian B/As may not be optionally prepaid.
(b) In the event and If on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any date any Net Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Parent Borrower shall, within three ten Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the aggregate amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Parent Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Parent Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied "Reinvestment Net Proceeds"), within 360 days after receipt of such Net Proceeds Proceeds, to make Permitted Acquisitions or Investments permitted by Section 6.5 or acquire real property, equipment or other tangible assets to be used in the business of the Parent Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default or Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided. Notwithstanding the foregoing, furtherfrom and after the date in any fiscal year of the Parent Borrower on which the aggregate gross proceeds (inclusive of amounts of the type described in the first parenthetical of Section 6.6(d)) from Dispositions pursuant to Sections 6.6(d) and (j) received during such fiscal year exceed 10% of Total Consolidated Assets, that the Borrower may use an amount equal to a portion of such Net Proceeds from a each subsequent Prepayment Event described in clause occurring during such fiscal year resulting from Dispositions pursuant to Sections 6.6(d) and (aj) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such and a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the ratable amount of such Net Proceeds and (y) from any Prepayment Event that first causes the aforementioned 10% threshold to be exceeded, which ratable amount shall be determined by reference to a fraction, the numerator of which is shall be the outstanding principal amount portion of the gross proceeds from such Permitted Pari Passu Refinancing Debt Prepayment Event representing the excess above such 10% threshold and the denominator of which shall be the aggregate gross proceeds from such Prepayment Event) may not be treated as Reinvestment Net Proceeds.
(c) Notwithstanding anything to the contrary in this Agreement, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Borrowings or Tranche C Borrowings (such amounts, the sum "Tranche B Prepayment Amount" and the "Tranche C Prepayment Amount", respectively), at any time when Tranche A Borrowings remain outstanding, the Parent Borrower will, in lieu of applying such amount to the prepayment of Tranche B Borrowings and Tranche C Borrowings, respectively, on the date of the relevant Prepayment Event, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Lender and Tranche C Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Parent Borrower, the Administrative Agent will send to each Tranche B Lender and Tranche C Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Parent Borrower to prepay on the date that is ten Business Days after the date of the relevant Prepayment Event, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans or Tranche C Term Loans, as the case may be. Each Tranche B Lender and Tranche C Lender shall return a completed Prepayment Option Notice to the Administrative Agent no later than three Business Days prior to the mandatory prepayment date specified in the applicable Prepayment Option Notice (each a "Mandatory Prepayment Date"), with the failure to so return such notice being deemed to constitute an acceptance of the relevant prepayment. On the Mandatory Prepayment Date, (i) the Parent Borrower shall pay to the relevant Tranche B Lenders and Tranche C Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted, or have been deemed to have accepted, prepayment as described above and (ii) the Parent Borrower shall pay to the Tranche A Lenders an amount equal to the portion of the Tranche B Prepayment Amount and the Tranche C Prepayment Amount not accepted by the Tranche B Lenders and the Tranche C Lenders, and such amount shall be applied to the prepayment of the Tranche A Borrowings.
(d) If on any Determination Date relating to the Global Revolving Facility, the Total Global Exposure exceeds 105% of the total Global Revolving Commitments, the Parent Borrower shall, without notice or demand, within three Business Days after such Determination Date, prepay (or cause the relevant Foreign Subsidiary Borrower to prepay) Revolving Borrowings in an aggregate amount such that, after giving effect thereto, (i) the Total Global Exposure does not exceed the total Global Revolving Commitments and (ii) the aggregate outstanding principal amount of Term all Canadian Dollar Loans and does not exceed the aggregate outstanding principal amount total Canadian Commitments. If on any Determination Date relating to the Domestic Revolving Facility, the Total Domestic Exposure exceeds 105% of the total Domestic Revolving Commitments, the Parent Borrower shall, without notice or demand, within three Business Days after such Permitted Pari Passu Refinancing Debt.
Determination Date, prepay Revolving Borrowings or Swingline Borrowings (d) Following the end of each Fiscal Yearor, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of if no such Fiscal Year during which any Term Loans Borrowings are outstanding, deposit cash collateral in an account with the Borrower shall prepay Term Borrowings Administrative Agent pursuant to Section 2.5(j)) in an aggregate amount equal to such that, after giving effect thereto, the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by Total Domestic Exposure does not exceed the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)total Domestic Revolving Commitments.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy promptly thereafter) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or 11:00 a.m., London time, as applicable), three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.8, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.8. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.022.2, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Prepayment of Loans. (a) The Each Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing of such Borrower in whole or in part, subject to Section 2.16 (but otherwise without premium or penalty) and the requirements of this Section.
(b) In If, on the event and last day of any Interest Period for any Eurocurrency Revolving Borrowing, or on each occasion that any Interest Payment Date for any ABR Revolving Borrowing or any Borrowing under an Alternate Currency Supplement bearing interest at a Local Rate (i) the Revolving Credit Exposure of any Revolving Lender exceeds its Revolving Commitment or (ii) the Aggregate Revolving Credit Exposure exceeds the Aggregate Total Revolving Commitment, the applicable Borrower shall, on such day, prepay the Revolving Loans comprising such Borrowing in an amount equal to the lesser of (i) the amount necessary to eliminate such excess and (ii) the amount of such Borrowing. If, on any Reset Date, the Aggregate Revolving Credit Exposure exceeds 105% of the Total Revolving Commitment, then the Company shall prepay (or shall cause a Borrowing Subsidiary to prepay), within three Business Days, one Business Day prepay or more Revolving Borrowings (or, if no such or Swingline Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate principal amount equal to the excess, if any, of the Aggregate Revolving Credit Exposure (as of such excessReset Date) over the Total Revolving Commitment.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower Company or any Restricted Subsidiary in respect of any Prepayment Event Event, (including by i) the Administrative Agent as loss payee Company shall prepay (or shall cause a Borrowing Subsidiary to prepay), within three Business Days after such Net Proceeds are received, Borrowings, if any shall be outstanding, in an aggregate amount equal to (A) in the case of Net Proceeds received in respect of any Prepayment Event described of the type specified in clause (a) or (b) of the definition of the term “"Prepayment Event”)", the Borrower shall, within three Business Days after the day 75% of such Net Proceeds are received, prepay Term Borrowings and (B) in an aggregate amount equal to 100% the case of Net Proceeds received in respect of any Prepayment Event of the amount type specified in clause (c) of the definition of Prepayment Event, 50% of such Net ProceedsProceeds and (ii) the Total Revolving Commitment shall be reduced by such amount, with a pro rata reduction of each Revolving Lender's Revolving Commitment; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “"Prepayment Event”", if the Borrower shall, prior to the date of the required prepayment, Company shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends Company and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or Company and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required and no reduction shall be made pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds net proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required required, and a reduction shall be made, in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before On the date that is three Business Days after of any termination or reduction of the date on which financial statements are delivered Revolving Commitments pursuant to Section 5.01(a2.08, the Company shall pay or prepay (or shall cause a Borrowing Subsidiary to pay or prepay) with respect so much of the Revolving Borrowings as shall be necessary in order that the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Commitment after giving effect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)termination or reduction.
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, Company shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any each prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of Revolving Dollar Borrowings shall be applied first to prepay any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the BorrowerBorrowings outstanding as ABR Borrowings.
(f) The Borrower Company shall notify the Administrative Applicable Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case of a prepayment of a Eurodollar Eurocurrency Revolving Borrowing, not later than 11:00 a.m., Local Time, three Business Days before the date of prepayment, (ii) in the case of a prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, three one Business Days (or such shorter period as agreed to by the Administrative Agent) Day before the date of prepayment or (iiiii) in the case of prepayment of an ABR Borrowinga Swingline Loan, not later than 11:00 a.m.12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, and shall set forth in reasonable detail the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) that, if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied2.08. Promptly following receipt of any such noticenotice relating to a Borrowing, the Administrative Applicable Agent shall advise the applicable Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing of any Class in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower Parent or any Restricted Subsidiary in respect of any Prepayment Event following the Amendment No. 2 Effective Date, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, ,” within three Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, ,” if the Borrower shall, shall (a) prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of Parent to the effect that the Borrower Parent intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower Parent or the Restricted Subsidiaries Subsidiaries, or to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person) permitted hereunder, and certifying that no Default has occurred and is continuing, and (b) in the case of a sale of Term Priority Collateral, deposit all such Net Proceeds in a Proceeds Collateral Account pending such application, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360365-day period (or within a period of 180 days thereafter if by the end of such initial 360365-day period the Borrower Parent or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets, or to consummate such Permitted Acquisition or other acquisition, with such Net Proceeds) or at such earlier date as the Parent or applicable Restricted Subsidiary may elect by written notice to the Administrative Agent in accordance with Section 2.09(d), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so appliedapplied (and no prepayment shall be required to the extent the aggregate amount of such Net Proceeds that are not reinvested in accordance with this Section does not exceed $25,000,000 in any fiscal year, in which case, the Administrative Agent shall cause such funds to be returned to the Borrower); provided, further, that to the Borrower may use an amount equal to a portion of extent any such Net Proceeds shall be received in respect of assets owned by a Loan Party, such Net Proceeds may be reinvested only in assets owned by a Loan Party or, in the case of a Permitted Acquisition or other acquisition, by any Person that shall become a Guarantor upon the consummation thereof (other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent such Net Proceeds shall have resulted from a the sale of Equity Interests in one or more Foreign Subsidiaries). Notwithstanding the foregoing, the Net Proceeds received by Parent or any Restricted Subsidiary in respect of any Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay involving any ABL Priority Collateral (whether in the form of a direct sale, transfer or repurchase other disposition of such ABL Priority Collateral or a sale, transfer or other disposition of Equity Interests in any Permitted Pari Passu Refinancing Debt Restricted Subsidiary owning such ABL Priority Collateral) that secures any obligations in respect of the ABL Credit Agreement at the time such Prepayment Event occurs shall not, solely to the extent that such Net Proceeds are attributable to the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds fair value of such Prepayment EventABL Priority Collateral (net of any related transferred liabilities, in each case as determined reasonably and in good faith by a Financial Officer of Parent), be subject to the requirements of this Section 2.09(b).
(c) In the event that Parent has Excess Cash Flow for any fiscal year of Parent, commencing with the first fiscal year ending after the Amendment No. 2 Effective Date, the Borrower shall, not later than 90 days following the end of such fiscal year, prepay Loans in an amount not equal to exceed the product excess of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by fiscal year over (y) the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered Loans pursuant to Section 5.01(a2.09(a) during such fiscal year (other than with respect to the Fiscal Year for which Excess Cash Flow is being calculated proceeds of Indebtedness (and in any event not later than excluding Indebtedness under the last day on which such financial statements may be delivered in compliance with such SectionABL Credit Agreement)).
(ed) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any from a Prepayment Event under clause (a) or (b) of the definition thereof made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, among the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the relevant Incremental Facility Amendment for Agreement or Extension Agreement, any Class of Incremental Term Loans or Extended Term Loans may be paid on a pro rata basis or less than pro rata basis with any other Class of Loans. Any prepayment of Loans from a Prepayment Event described in clause (c) of the definition of “Prepayment Event” shall be applied to the Class or Classes of Loans selected by the Borrower. Notwithstanding the foregoing, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case the aggregate amount of the prepayment payment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall first, be offered to Lenders who did not decline its pro rata share of the prepayment and second, if declined by such Lenders, may be retained by the BorrowerBorrower and shall constitute “Declined Proceeds.”
(e) In the event any Tranche B-2 Term Loans are subject to a Repricing Event prior to the date that is six months after the Amendment No. 23 Effective Date, then each Lender whose Tranche B-2 Term Loans are prepaid or repaid in whole or in part, or which is required to assign any of its Tranche B-2 Term Loans pursuant to Section 2.17, in connection with such Repricing Event or which holds a Tranche B-2 Term Loan the All-in Yield of which is reduced as a result of a Repricing Event shall be paid an amount equal to 1.00% of the aggregate principal amount of such Lender’s Tranche B-2 Term Loans so prepaid, repaid, assigned or repriced.
(f) [Reserved].
(g) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail telecopy or facsimileelectronic mail) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR BorrowingBorrowing or Fixed Rate Term Loan, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent as required by Section 2.122.11 and any break funding payments required by Section 2.14.
(gh) All On the Amendment No. 2 Effective Date the Borrower shall (i) prepayments of repay to each Lender with Tranche B Term Borrowings effected on or prior to Loans (other than Converted Tranche B Term Loans) the six-month anniversary full principal amount of the Effective Date, in each case such Tranche B Term Loans together with the proceeds of a Repricing Transaction all accrued and unpaid interest thereon; and (ii) amendments, amendments and restatements or repay to each Lender with Tranche B-1 Term Loans (other modifications of this Agreement on or prior to than Converted Tranche B-1 Term Loans) the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate full principal amount of the such Tranche B B-1 Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment Loans together with all accrued and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepaymentunpaid interest thereon.
(hi) Notwithstanding any other provisions of this Section 2.102.09, (x) to the extent that any or all of the Net Proceeds in respect of any event Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” is received by a Restricted Subsidiary that is a Foreign Subsidiary (a “Foreign Prepayment Event”), or Excess Cash Flow is attributable to a Restricted Subsidiary that is a Foreign SubsidiariesSubsidiary (in each case as determined reasonably and in good faith by a Financial Officer of Parent and set forth in an officer’s certificate delivered to the Administrative Agent), in either case are and such Restricted Subsidiary is prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of from repatriating such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount amounts to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amountUnited States, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans repay Borrowings of any Class at the times provided in this Section 2.10 2.09 but may be retained by the applicable Foreign Restricted Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or to the distribution United States (the Parent hereby agreeing to or otherwise using for the benefit of the Borrower or cause the applicable Domestic Subsidiary, or Restricted Subsidiary to promptly take all actions reasonably required by the Borrower believes in good faith that applicable local law to permit such material adverse tax consequence would resultrepatriation), and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequenceslaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five two (2) Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result thereofthereof as determined reasonably and in good faith by a Financial Officer of Parent and set forth in an officer’s certificate delivered to the Administrative Agent) to the prepayment repayment of the Term Loans Borrowings pursuant to this Section 2.10 2.09 to the extent otherwise provided herein, and (provided y) to the extent that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case foregoing clause (i) does not apply and repatriation of any such of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow attributable to a Restricted Subsidiary that is Foreign Subsidiary would have material adverse tax consequences (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) for Parent and the repatriation of which the Borrower believes Restricted Subsidiaries, taken as a whole (as determined reasonably and in good faith would result by a Financial Officer of Parent and set forth in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal officer’s certificate delivered to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if lessAdministrative Agent), the Net Proceeds or Excess Cash Flow that would so affected may be calculated if received retained by such Foreign the applicable Restricted Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
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Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, without penalty or premium (subject to paragraph (h) of this Section), subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentCommitment (including as a result of the occurrence of a Maturity Date with respect to any portion the Aggregate Revolving Commitments when another portion thereof has a later Maturity Date as a result of a Loan Modification Agreement), the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted other Subsidiary in respect of any Prepayment Event Event, the Borrower shall, on the day such Net Proceeds are received (including by or, in the Administrative Agent as loss payee in respect case of any a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three 10 Business Days after the day such Net Proceeds are received), prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied (or committed to be applied) within 360 days one year after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used or useful in the business of the Borrower or any of the Restricted Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary), or to consummate any Permitted Acquisition (or other acquisition permitted hereunder) in accordance with the provisions hereof of Persons that will become, or assets that will be held by, the Borrower or any of the Domestic Subsidiaries (or any Foreign Subsidiary solely to the extent such Net Proceeds are attributable to a Foreign Subsidiary) (but not of or by other Persons), and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of from such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360one-day year period (or within a period of 180 days thereafter if by the end of such initial 360one-day year period the Borrower or one or more Restricted of the Domestic Subsidiaries or Foreign Subsidiaries, as applicable, shall have entered into an a legally binding agreement with a third party to acquire such real propertyassets, equipment or to consummate such Permitted Acquisition (or other tangible assetsacquisition permitted hereunder), with such Net Proceeds), at which time a prepayment shall be required in an amount equal to such the Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2019, the Borrower shall prepay Term Borrowings of each Class in an aggregate amount equal to (i) the Specified ECF Percentage product of (A) 75% (or, if the Leverage Ratio as of the last day of such fiscal year shall have been less than (x) 4.00 to 1.00 and equal to or greater than 3.25 to 1.00, 50%, (y) 3.25 to 1.00 and equal to or greater than 2.75 to 1.00, 25% and (z) 2.75 to 1.00, 0%) of Excess Cash Flow for such Fiscal Year; provided that fiscal year and (B) the percentage of the aggregate principal amount of the Term Borrowings of all Classes outstanding as of the end of such amount shall be reduced dollar-for-dollar fiscal year represented by the Term Borrowings of such Class outstanding as of the end of such fiscal year, less (ii) the aggregate principal amount of prepayments any voluntary prepayment of Term Borrowings of such Class or (to the extent accompanied by a permanent reduction in the Revolving Commitments) Revolving Loans made by the Borrower pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year (the prepayment otherwise required in respect of Term Borrowings of any Class being credited in an amount equal to the percentage referred to in clause (B) above applicable to such Class applied to the amount of any such prepayment of Revolving Loans), excluding in any event any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three within five (5) Business Days after of the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not no later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) In the event and on each occasion that, as a result of the receipt of any cash proceeds by Holdings, the Borrower or any other Subsidiary in connection with any Disposition of any asset or any other event, Holdings, the Borrower or any other Loan Party would be required by the terms of any Indebtedness that is Subordinated Indebtedness with respect to the Loan Document Obligations (or any Refinancing Indebtedness in respect thereof) to repay, prepay, redeem, repurchase or defease, or make an offer to repay, prepay, redeem, repurchase or defease, any such Subordinated Indebtedness (or such Refinancing Indebtedness) or any other Subordinated Indebtedness, then, prior to the time at which it would be required to make such repayment, prepayment, redemption, repurchase or defeasance or to make such offer, the Borrower shall, if and to the extent it would reduce, eliminate or satisfy any such requirement, (i) prepay Term Borrowings or (ii) use such cash proceeds to acquire assets in one or more transactions permitted hereby.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select shall specify the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain are outstanding, the Borrower shall (except as otherwise required by paragraph (d) of this Section or as otherwise provided in the Incremental Facility Agreement with respect to any Incremental Term Facility) select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A among the Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount amounts of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(fg) The Borrower shall notify the Administrative Agent by telephone (confirmed and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by hand delivery, e-facsimile or electronic mail or facsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a Eurodollar Eurocurrency Borrowing, not later than 11:00 a.m.12:00 noon, New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be conditional and may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such noticenotice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall (except as otherwise required by paragraph (j) hereof) be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All (i) voluntary prepayments of Tranche B Term Borrowings Loans and all mandatory prepayments of Term Loans required as a result of the incurrence of Indebtedness pursuant to Section 2.11(c) that, in any case are effected on or after the Second Refinancing Facility Agreement Effective Date and prior to the six-month anniversary of date that is 6 months after the Second Refinancing Facility Agreement Effective Date, in each case Date with the proceeds of a Repricing Transaction and substantially concurrent issuance or incurrence of term loan Indebtedness (ii) amendments, amendments and restatements including any replacement or other modifications incremental term loan facility effected pursuant to an amendment of this Agreement on Agreement) incurred for the primary purpose of repaying, refinancing, substituting or prior to replacing, in whole or in part, the six-month anniversary Term Loans (and, in any event, excluding any repayment, refinancing, substitution or replacement of the Effective Date, the effect Term Loans that may occur in connection with a Change in Control or any other larger strategic transaction of which is a Repricing Transaction, in each case shall Holdings) will be accompanied by a prepayment fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of such prepayment if the Tranche B Term Borrowings so prepaid, effective interest rate or weighted average yield (assuming a 4-year life to maturity) (to be determined in the case reasonable discretion of a transaction described the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, LIBOR floors, upfront or similar fees or original issue discount shared with all lenders or holders thereof, but excluding the effect of any arrangement, structuring, syndication or other fees payable in clause (iconnection therewith that are not shared with all lenders or holders thereof) of this paragraphapplicable to such Indebtedness is, or 1.00% upon satisfaction of certain conditions (other than customary grid-based pricing) could be, less than the effective interest rate for, or weighted average yield of (to be determined in the reasonable discretion of the aggregate principal amount of Tranche B Administrative Agent consistent with generally accepted financial practices, on the same basis as above) the Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPOLoans. Such fee shall be paid by the Borrower to the Administrative Agent, for the account accounts of the Tranche B relevant Term Lenders, on the date of such prepayment.
(hi) Notwithstanding anything to the contrary contained in this Section 2.11, if any Lender shall notify the Administrative Agent at least one Business Day prior to the date of any prepayment pursuant to Section 2.11(c) or 2.11(d) (other than in connection with a refinancing of all Term Loans) that it wishes to decline its share of such prepayments, such share shall be retained by the Borrower. In such case, the scheduled amortization payments required by Section 2.10 with respect to the Term Loans of such Lender shall not be reduced as a result of the relevant prepayment that was declined, and the Borrower shall remain responsible for the payment thereof in accordance with the provisions of Section 2.10.
(j) Notwithstanding any other provisions of this Section 2.102.11 to the contrary, to the extent that any or all of the Net Proceeds received by a Foreign Subsidiary in respect of any event a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are is prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to the United States or distributed to or used for the benefit of extent that Holdings and the Borrower or any applicable Domestic Subsidiary or if the Borrower has have determined in good faith that repatriation of or requirement to repatriate any or all of such amount to the Borrower or any applicable Domestic Subsidiary Net Proceeds would have a material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) cost consequence with respect to such amountNet Proceeds, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the repay Term Loans at the times provided in this Section 2.10 2.11(c) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as (i) the applicable local law will not permit repatriation or to the distribution to or otherwise using for the benefit of United States (Holdings and the Borrower or hereby agreeing to cause the applicable Domestic Subsidiary, Foreign Subsidiary to promptly use commercially reasonable efforts to take all actions reasonably required by the applicable local law to permit such repatriation) or (ii) the Borrower believes in good faith that repatriation of or requirement to repatriate such Net Proceeds would have a material adverse tax cost consequence would result, and with respect to such Net Proceeds; provided that once such the repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law law, the repatriation of or the Borrower determines in good faith requirement to repatriate such repatriation affected Net Proceeds would no longer would not have such a material adverse tax consequencescost consequence or such Net Proceeds are repatriated at the option of Holdings and the Borrower, then an amount equal to such repatriation affected Net Proceeds will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable reserved against as a result of the thereof) to the prepayment repayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of 2.11(c), subject to the Term Loans pursuant to this Section 2.10 reinvestment rights set forth therein, which shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, apply as if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount repatriation of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by were the Borrower rather than such Foreign Subsidiary, less the amount date of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)initial receipt thereof.
Appears in 1 contract
Samples: Credit Agreement (SVMK Inc.)
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Loan in whole or in part, subject to the requirements of this Section; provided that, in the case of a Eurodollar Loan, such prepayment may only be made on the last day of the applicable Interest Period.
(b) In the An Asset Disposition Trigger Event shall constitute an event of failure under this Agreement and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, within 5 Business Days following any Asset Disposition Trigger Event the Borrower shall within one Business Day make an offer to the Agent to prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate principal amount of Loans equal to the Security Beneficiary Percentage of the Net Proceeds resulting from such Asset Disposition Trigger Event, and any such amount shall be applied in the manner specified in Subsection 2.10(e). For the avoidance of doubt, any failure of the Borrower to make such an offer to prepay or to effect such prepayment shall constitute an Event of Default under this Agreement.
(c) If a Credit Party incurs after the date hereof any Prepayment Debt, the Debt Prepayment Amount shall be paid to the Agent within 5 Business Days following the incurrence of such Prepayment Debt.
(d) An amount equal to the Security Beneficiary Percentage of 25% of the Excess Cash Flow for each financial year of the Borrower shall be paid to the Agent not later than 30 days after the delivery of the audited financial statements required pursuant to Subsection 5.01(a)(i) at the end of such financial year.
(e) Subject to Subsection 2.10(f) below, all amounts received by the Agent pursuant to Subsection 2.10(c) or (d) and all prepayments made under Subsection 2.10(a), shall be applied in repayment on a pro rata basis to the outstanding Loans; and all prepayments made pursuant to Subsection 2.10(b) or (g) shall be applied in repayment on a pro rata basis to the outstanding Loans that accept the related offer to prepay. For greater certainty, all prepayments made pursuant to this Subsection shall be applied to reduce subsequent scheduled repayments of the Loans to be made pursuant to Section 2.09 in inverse order of maturity.
(f) If an Event of Default shall not have occurred and be continuing, and if any repayment otherwise required at any time by Subsections 2.10(c) or (d) would result in the mandatory repayment of an amount on account of any Loan on or prior to the fifth anniversary of the date such Loan was advanced hereunder of an aggregate amount of such Loan exceeding 25% of the principal amount thereof advanced hereunder after taking into account all mandatory (but not voluntary) repayments on account of such Loan made prior to such time, then notwithstanding Subsection 2.10(e), the Agent shall refund to the Borrower from such repayment an amount equal to such excessexcess which would otherwise have been applied in repayment of such Loan, such excess shall be deemed not to have been a repayment by the Borrower, and an amount equal to such excess shall be repaid on account of such Loan on the day after the fifth anniversary of the advance of such Loan hereunder.
(cg) In the event and on each occasion that any Net Proceeds are received by Credit Party (other than the Borrower) OPTIONALLY repays, or on behalf offers OPTIONALLY to repay, any Debt FOR BORROWED MONEY of a Credit Party (other than the Borrower or any Restricted Subsidiary in respect Borrower) then such repayment shall constitute an event of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), failure under this Agreement and the Borrower shall, within three Business Days after the day date of such Net Proceeds are receivedrepayment, offer to prepay Term Borrowings Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the sum of the aggregate principal amount of such Net Proceeds and the Loans outstanding at the time, multiplied by (y) a fraction, the numerator of which is the outstanding aggregate principal amount of such Permitted Pari Passu Refinancing Debt repayment, and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and Debt of the aggregate Credit Parties (other than the Borrower) outstanding principal amount as of such Permitted Pari Passu Refinancing Debt.
date, determined on a consolidated basis in accordance with GAAP, immediately prior to such repayment (d) Following excluding Debt in respect of the end Loans); PROVIDED that an offer of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion prepayment of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall not be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment required pursuant to this paragraph shall be made on or before in respect of (i) repayments of Loans, (ii) any repayment of Debt to the extent such repayment is refinanced by incurring other Debt that (A) has a scheduled maturity date that is three Business Days on or after the scheduled maturity date on which financial statements are delivered pursuant of the Debt being refinanced, (B) has a weighted average life to Section 5.01(amaturity that is equal to or longer than the remaining weighted average life to maturity of the Debt being refinanced, determined immediately prior to giving effect to such repayment, (C) does not include any provisions that may require mandatory repayment thereof prior to scheduled maturity, other than scheduled repayments taken into consideration in determining compliance with respect clause (B) above and other provisions included in the Debt being refinanced, (D) is subordinated in right of payment at least to the Fiscal Year for which Excess Cash Flow same extent as the Debt being refinanced, if applicable, and (E) is not secured or guaranteed, other than by Liens on assets securing or by guarantors of the Debt being calculated refinanced and (and iii) any repayment of Debt at the scheduled final maturity thereof or in any event not later than the last day on which such financial statements may be delivered in compliance accordance with such Section)regularly scheduled amortization requirements prior to maturity.
(eh) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that notify the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) of any prepayment hereunder (i) in the case or offer of prepayment of a Eurodollar Borrowing, hereunder not later than 11:00 a.m.2:00 p.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date(which, in the case of an offer of prepayment, shall be not less than five nor more than ten Business Days following such notices), the principal amount of each Borrowing Loan or portion thereof to be prepaid or to which such offer of prepayment applies and, in the case of a mandatory prepaymentprepayment or an offer of prepayment pursuant to Subsection 2.10(b), (c) or (d), a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date offer of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial Lender holding a Loan subject to an offer of prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary pursuant to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
Subsection 2.10(b) or (g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Dateshall, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences notice to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event Agent given not later than five 2:00 p.m., New York City time, one Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) Day prior to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).applicable
Appears in 1 contract
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements prior notice in accordance with paragraph (e) of this SectionSection and, if applicable, payment of any break funding expenses under Section 2.14.
(b) In the event and on each such occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower Borrowers shall promptly prepay (and in any event within one Business Day prepay Day) the Revolving Borrowings Loans and/or LC Exposure (or, if no such Borrowings are outstanding, deposit cash collateral in the LC Collateral Account in an account with the Administrative Agent aggregate amount equal to such excess, in accordance with Section 2.04(i2.04(h)) ). In addition, in the event and on such occasion that the CapEx Exposure exceeds the CapEx Commitment, the Borrowers shall prepay the CapEx Loans and/or CapEx Term Loans in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower any Loan Party or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower Borrowers shall, within three Business Days immediately after the day such Net Proceeds are receivedreceived by any Loan Party or Subsidiary, prepay Term Borrowings the Obligations and cash collateralize the LC Exposure as set forth in Section 2.09(d) below in an aggregate amount equal to 100% of the amount of such Net Proceeds; , provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, Representative shall deliver to the Administrative Agent Lender a certificate of a Responsible Financial Officer to the effect that the Borrower intends Loan Parties intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 120 days after receipt of such Net Proceeds Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower or the Restricted Subsidiaries Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except provided that to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property120‑day period, equipment or other tangible assets), at which time a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further, provided further that the Borrower may Borrowers shall not be permitted to make elections to use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause to acquire (aor replace or rebuild) real property, equipment or other tangible assets (bexcluding inventory) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which Net Proceeds in any Term Loans are outstanding, the Borrower shall prepay Term Borrowings fiscal year in an aggregate amount equal in excess of $1,250,000.
(i) All prepayments required to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph Section 2.09(c) (a) of this Section during such Fiscal Year, excluding any such prepayments as to the extent financed they arise from Excluded Sources. Each prepayment pursuant to this paragraph Equipment purchased with CapEx Loans) shall be made on or before applied, first to prepay the date that is three Business Days after CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the date on which financial statements are delivered pursuant then outstanding amounts thereof), and second to Section 5.01(a) with respect to prepay the Fiscal Year for which Excess Cash Flow is being calculated Term Loans (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings Loans of more than one Class remain outstandingshall be outstanding at the time, shall be allocated among the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, Loans pro rata based on the aggregate principal amount amounts of outstanding Borrowings Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and fourth to cash collateralize outstanding LC Exposure.
(ii) All prepayments required to be made pursuant to Section 2.09(c) (as to the extent they arise from any assets (other than Equipment purchased with CapEx Loans) shall be applied, first to prepay the Term Loans (and in the event Term Loans of more than one Class shall be outstanding at the time, shall be allocated among the Term Loans pro rata based on the aggregate principal amounts of outstanding Term Loans of each such Class) as so allocated, and shall be applied to reduce the subsequent scheduled repayments of Term Loans of each Class to be made pursuant to Section 2.08 in inverse order of maturity, and second to prepay the CapEx Loans and/or CapEx Term Loan (to be applied to installments of such Loans in inverse order of maturity, ratably in accordance with the then outstanding amounts thereof), and third to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and third to cash collateralize outstanding LC Exposure; provided that all prepayments required to be made pursuant to Section 2.09(c) (with respect to Net Proceeds arising from any Tranche A Term Lender and Tranche B Term Lender (andcasualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding, to the extent provided they arise from casualties or losses to cash or Inventory) shall be applied, first, to prepay the Revolving Loans without a corresponding reduction in the Incremental Facility Amendment for any Class of Incremental Term LoansRevolving Commitment and second, any Lender that holds Incremental to cash collateralize outstanding LC Exposure, and third, to prepay the Term Loans of such Class(allocated and applied to subsequent scheduled repayments as set forth above) may elect, by notice and fourth to prepay the Administrative Agent CapEx Loans and/or CapEx Term Loan (allocated and applied to subsequent scheduled repayments as set forth above).
(e) The Borrower Representative shall notify the Lender by telephone (confirmed by hand deliveryfax) or through Electronic System, e-mail or facsimile) at least one Business Day prior to if arrangements for doing so have been approved by the required prepayment dateLender, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of under this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder : (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 10:00 a.m., New York City timeEastern Standard Time, three (3) Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment prepayment, or (ii) in the case of prepayment of an ABR a CBFR Borrowing, not later than 11:00 10:00 a.m., New York City time, Eastern Standard Time on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepaymentprepaid; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments Commitment as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof2.07. Each partial prepayment of any Revolving Borrowing or Term Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction 2.11 and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans break funding payments pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary)2.14.
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sources. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section)[Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment[Reserved].
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign SubsidiariesSubsidiary, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Restricted Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds)Section, (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each such occasion that the Aggregate sum of the Revolving Exposure Exposures exceeds the Aggregate total Revolving CommitmentCommitments, the Borrower shall within one Business Day prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with pursuant to Section 2.04(i2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% such Net Proceeds (or, in the case of an event described in clause (c) of the amount definition of Prepayment Event, 50% of such Net Proceeds); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Restricted Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 days after receipt of such Net Proceeds Proceeds, (i) to acquire real property, equipment or other tangible assets to be used (including by making a Permitted Acquisition) productive in the Borrower's line of business as conducted on the Effective Date, or ancillary or complementary thereto, or (ii) to the extent such Prepayment Event arises from the sale, transfer or disposition of the Borrower any investment in an Unrestricted Subsidiary, to make investments in one or the Restricted Subsidiaries and more other Unrestricted Subsidiaries, and, in each case, certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year fiscal year ending December 31March 26, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2001, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under this Sectionhereunder, the Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any optional or mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term Borrowings, Tranche C Term Borrowings and Tranche B C-1 Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term C Lender and or Tranche B Term C-1 Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimiletelecopy) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).by
Appears in 1 contract
Samples: Amendment and Restatement Agreement (American Media Operations Inc)
Prepayment of Loans. (a) The Borrower Borrowers shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty (except as set forth in clause (h) of this Section 2.11), subject to the requirements of this SectionSection 2.16.
(b) The Administrative Agent shall determine the Euro Equivalent of each Revolving Borrowing denominated in Permitted Other Currencies and the LC Exposure in respect of Letters of Credit denominated in Permitted Other Currencies (i) as of the first day of each Interest Period applicable thereto, (ii) as of the end of each fiscal quarter of Holdings, and shall promptly notify the Borrowers and the Lenders of each Euro Equivalent so determined by it and (iii) if an Event of Default has occurred and is continuing and the Swiss Borrower has been provided notice thereof by the Administrative Agent or the Required Lenders, any Business Day as determined by the Administrative Agent (each such date, a “Calculation Date”). Each such determination shall be based on the Exchange Rate (A) on the date of the related Borrowing request for purposes of the initial such determination for any Revolving Borrowing and (B) on the fourth Business Day prior to the date as of which such Euro Equivalent is to be determined, for purposes of any subsequent determination. In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the each Borrower shall within one Business Day prepay its Revolving Borrowings (or, if no such Revolving Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.05(i)) in an aggregate amount equal to such excess. In the event and on each occasion that (i) the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment (other than as a result of any revaluation of the Euro Equivalent of Revolving Loans or the LC Exposure denominated in any Permitted Other Currency on any Calculation Date) or (ii) the Aggregate Revolving Exposure exceeds 105% of the Aggregate Revolving Commitments solely as a result of any revaluation of the Euro Equivalent of Revolving Loans or the LC Exposure on any Calculation Date, each Borrower shall prepay its Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i2.05(h)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Holdings, any Borrower or any Restricted Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Swiss Borrower shall, within three five Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of the amount of such Net ProceedsProceeds (or, if any Borrower or any of its Restricted Subsidiaries has incurred Indebtedness that is permitted under Section 6.01 that is secured, on an equal and ratable basis with the Term Loans, by a Lien on the Collateral permitted under Section 6.02, and such Indebtedness is required to be prepaid or redeemed with the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, then by such lesser percentage of such Net Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Proceeds based upon the aggregate principal amount of the Term Loans and such Indebtedness then outstanding) (such Net Proceeds amount, as reduced in accordance with the proviso to this paragraph (c), the “Net Proceeds Prepayment Amount”); provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”” and so long as no Event of Default under Section 7.01(a), 7.01(b) or, solely with respect to any Borrower, Section 7.01(h) or 7.01(i) has occurred and be continuing if the Swiss Borrower shall, on or prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that Holdings or the Borrower intends Borrowers intend to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 360 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used reinvested in the business of Holdings, the Borrower Borrowers or the their Restricted Subsidiaries and certifying that no Default has occurred and is continuingSubsidiaries, or to enter into an acquisition permitted by this Agreement, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 360-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the any Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party committed to acquire invest such real property, equipment or other tangible assetsproceeds), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(d) Following the end of each Fiscal Yearfiscal year of Holdings, commencing with the Fiscal Year fiscal year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year during which any Term Loans are outstanding2019, the Swiss Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash Flow for such Fiscal Yearfiscal year (such amount, as reduced in accordance with the provisos to this paragraph (d), the “ECF Sweep Amount”); provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings and Revolving Borrowings (but only to the extent accompanied by a permanent reduction of the corresponding Commitment) made pursuant to paragraph (a) of this Section during such Fiscal Yearfiscal year (and, excluding any at the Swiss Borrower’s option (and without deducting such prepayments amounts against the subsequent fiscal year’s prepayment computation pursuant to this paragraph (d)), after the end of such fiscal year but prior to the extent financed from Excluded Sourcesdate on which the prepayment pursuant to Section 2.11(d) for such fiscal year is required to have been made); provided further that, in the case of any Term Loan prepaid in connection with the purchase thereof by a Purchasing Borrower Party pursuant to Section 9.04(e) at a discount to par, the prepayment required pursuant to this Section 2.11(d) shall be reduced, with respect to the prepayment of such Term Loan, only by the actual amount of cash paid to the applicable Lender or Lenders in connection with such purchase. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial statements may be delivered in compliance with such Section).
(e) Notwithstanding any other provisions of Section 2.11(c) or (d), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event by or Excess Cash Flow of a Subsidiary of Holdings giving rise to a prepayment pursuant to Section 2.11(c) or (d) (a “Foreign Prepayment Event”) are prohibited or delayed by applicable local law from being repatriated to the applicable Borrower, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or (d), as the case may be, and such amounts may be retained by such Subsidiary, and once such Borrower has determined in good faith that such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, then the amount of such Net Proceeds or Excess Cash Flow will be taken into account as soon as practicable in determining the amount to be applied (net of additional taxes payable or reserved if such amounts were repatriated) to the repayment of the Term Loans pursuant to Section 2.11(c) or (d), as applicable, (B) to the extent that and for so long as the Swiss Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax or cost consequence with respect to such Net Proceeds or Excess Cash Flow, the amount of Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be retained by such Subsidiary; provided that when the Swiss Borrower determines in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would no longer have a material adverse tax consequence with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow shall be taken into account as soon as practicable in determining the amount to be applied (net of additional taxes payable or reserved against if such amounts were repatriated) to the repayment of the Term Loans pursuant to Section 2.11(c) or Section 2.11(d), as applicable, and (C) to the extent that and for so long as the Swiss Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would give rise to a risk of liability for the directors of such Subsidiary, the Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be retained by such Subsidiary.
(f) Prior to any optional or mandatory prepayment of Borrowings under this Section, the Swiss Borrower shall, subject to the next sentence, shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (fg) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is shall be allocated between among the Tranche A Term Borrowings and Borrowings, the Euro Tranche B Term Borrowings and the Dollar Tranche B Term Borrowings (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, ) pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone in writing (confirmed by via hand delivery, e-mail facsimile or facsimileother electronic imaging) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than (x) an optional prepayment pursuant to paragraph (a) of this SectionSection or (y) a mandatory prepayment triggered by an event described in clause (c) of the definition of the term “Prepayment Event”, neither of which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term such Loans or Incremental Term Loans of any such Class but was so declined shall may be retained by the applicable Borrower.
(fg) The Swiss Borrower shall notify the Administrative Agent by telephone in writing (confirmed by via hand delivery, e-mail facsimile or facsimileother electronic imaging) of any optional prepayment and , to the extent practicable, any mandatory prepayment hereunder (i) in the case of a prepayment of a Eurodollar Eurocurrency Borrowing or EURIBOR Borrowing, not later than 11:00 a.m., New York City timeLocal Time, three Business Days (or such shorter period as agreed to by the Administrative Agent) before the date of prepayment or (ii) in the case of a prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.072.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Swiss Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.122.13.
(gh) All (i) prepayments of Tranche B Term Borrowings Loans effected on or prior to the six-month anniversary of the Effective Date, in each case Date with the proceeds of a Repricing Transaction Transaction, and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to for the ratable account of each of the applicable Tranche B Term Lenders in an amount equal to 1.00% of the aggregate principal amount of the Tranche B Term Borrowings so prepaid, prepaid in the case of a transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of the Tranche B Term Borrowings affected by such amendment, amendment and restatement or other modification, modification in the case of a transaction described in clause (ii) of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to a refinancing of all the Loans outstanding under this Agreement in connection with (i) an acquisition of the Borrower or the sale of all or substantially all the Borrower’s consolidated assets or (ii) an IPO. Such fee shall be paid by the Borrower Borrowers to the Administrative Agent, for the account of the Tranche B Term LendersLenders of the applicable Class, on the date of such prepayment.
(hi) Notwithstanding any other provisions of this Section 2.10, If the Spin-Off has not occurred on or prior to the extent any or all earlier of the Net Proceeds of any event described in clause (ax) or October 5, 2018 and (by) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which Honeywell or Holdings notifies the Administrative Agent in writing that the Spin-Off will not occur (such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceedsdate, the “Deadline”), then (xi) the Revolving Commitments shall terminate at such time and (ii) each applicable Borrower applies an amount equal to shall (A) prepay two Business Days following the Deadline in full in immediately available funds the aggregate outstanding principal amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign SubsidiaryLoans then outstanding at par plus accrued interest, less and pay all other amounts payable in respect of the amount Facilities and (B) cash collateralize any outstanding Letters of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign SubsidiaryCredit in accordance with Section 2.05(i).
Appears in 1 contract
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving CommitmentSubject to paragraph (h) of this Section, the Borrower shall within one Business Day prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary Loan Party in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within three Business Days after the day such Net Proceeds are received, prepay Term Borrowings in an aggregate principal amount equal to 100% of the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the date of the required prepayment, shall deliver to the Administrative Agent a certificate of a Responsible Financial Officer to the effect that the Borrower intends and the Subsidiaries intend to cause apply the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied ), within 360 180 days after receipt of such Net Proceeds Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or and the Restricted Subsidiaries Subsidiaries, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 360180-day period (or within a period of 180 days thereafter if by the end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets)period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that the Borrower may use an amount equal to a portion of such Net Proceeds from a Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment Event” to prepay or repurchase any Permitted Pari Passu Refinancing Debt to the extent that the documentation governing such Permitted Pari Passu Refinancing Debt requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such Permitted Pari Passu Refinancing Debt and the denominator of which is the sum of the aggregate outstanding principal amount of Term Loans and the aggregate outstanding principal amount of such Permitted Pari Passu Refinancing Debt.
(dc) Following Subject to paragraph (h) of this Section, following the end of each Fiscal Yearfiscal year of the Borrower, commencing with the Fiscal Year ending December 31, 2016 but solely with respect to that portion of such Fiscal Year fiscal year during which any Term Loans are outstandingthe Availability Termination Date occurs, the Borrower shall prepay Term Borrowings in an aggregate principal amount equal to the Specified ECF Percentage 50% of Excess Cash Flow for such Fiscal Year; provided that such amount shall be reduced dollar-for-dollar by the aggregate amount of prepayments of Term Borrowings made pursuant to paragraph (a) of this Section during such Fiscal Year, excluding any such prepayments to the extent financed from Excluded Sourcesfiscal year. Each prepayment pursuant to this paragraph shall be made on or before the date that is three Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) 5.01 with respect to the Fiscal Year fiscal year for which Excess Cash Flow is being calculated (and in any event not later than within 90 days after the last day on which end of such financial statements may be delivered in compliance with such Sectionfiscal year).
(ed) Prior to In the event and on each occasion that the Borrower or any optional Subsidiary Loan Party Repays any Indebtedness of the Borrower or mandatory prepayment of Borrowings under this Section, any Subsidiary Loan Party then the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Borrowings in respect of any Prepayment Event made at a time when Term Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between Tranche A Term Borrowings and Tranche B Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Borrowings of such Class, pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class; provided that any Tranche A Term Lender and Tranche B Term Lender (and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) at least one Business Day prior to the required prepayment date, to decline all or any portion of any prepayment of its Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Tranche A Term Loans, Tranche B Term Loans or Incremental Term Loans of any such Class but was so declined shall be retained by the Borrower.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery, e-mail or facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, within three Business Days (or such shorter period as agreed to by the Administrative Agent) before after the date of prepayment or (ii) in the case of prepayment of an ABR Borrowingsuch Repayment, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 and (B) a notice of prepayment of Term prepay Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(g) All (i) prepayments of Tranche B Term Borrowings effected on or prior to the six-month anniversary of the Effective Date, in each case with the proceeds of a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this Agreement on or prior to the six-month anniversary of the Effective Date, the effect of which is a Repricing Transaction, in each case shall be accompanied by a fee payable to the Tranche B Term Lenders in an aggregate amount equal to 1.00% the product of (x) the sum of the aggregate principal amount of the Tranche B Term Borrowings so prepaidLoans outstanding at the time, in multiplied by (y) a fraction, the case numerator of a transaction described in clause (i) of this paragraph, or 1.00% of which is the aggregate principal amount of Tranche B Term such Repayment, and the denominator of which is the amount of Total Indebtedness immediately prior to such Repayment (excluding Indebtedness in respect of the Loans and Indebtedness outstanding under revolving credit facilities); provided that prepayments of Borrowings affected by such amendmentshall not be required pursuant to this paragraph in respect of (i) Repayments of Loans, amendment and restatement or other modification, in the case of a transaction described in clause (ii) any Repayment of this paragraph. Notwithstanding Indebtedness to the foregoingextent such Repayment is refinanced by incurring other Indebtedness that (A) has a scheduled maturity date that is on or after the scheduled maturity date of the Indebtedness being refinanced, this paragraph (B) has a weighted average life to maturity that is equal to or longer than the remaining weighted average life to maturity of the Indebtedness being refinanced, determined immediately prior to giving effect to such Repayment, (C) does not include any provisions that may require mandatory Repayment thereof prior to scheduled maturity, other than scheduled repayments taken into consideration in determining compliance with clause (B) above and other provisions that are not materially more burdensome than any such provisions included in the Indebtedness being refinanced, (D) is issued or incurred by the same Person that issued or incurred the Indebtedness being refinanced and is not Guaranteed or secured by any Lien unless the Indebtedness being refinanced was Guaranteed or secured (in which case such Indebtedness shall not apply be Guaranteed by any Person that did not Guarantee the Indebtedness being refinanced and shall not be secured by a Lien on any asset that did not secure the Indebtedness being refinanced), and (E) is subordinated to a refinancing the Obligations on terms no less favorable than the terms on which the Indebtedness being refinanced was so subordinated, if such refinanced Indebtedness was so subordinated, (iii) any Repayment of all the Loans Indebtedness outstanding under this Agreement a revolving credit facility to the extent that (A) the commitments of the lenders to make loans thereunder remain in effect after giving effect to such Repayment or are replaced by commitments under a replacement revolving credit facility and (B) such commitments are not reduced within six months thereafter, (iv) any Repayment of secured Indebtedness in connection with (i) an acquisition of the Borrower or the sale of all the assets securing such Indebtedness, (v) any Repayment of Indebtedness at the scheduled final maturity thereof or substantially all the Borrower’s consolidated assets in accordance with regularly scheduled amortization requirements prior to maturity or (iivi) an IPO. Such fee shall be paid by the Borrower to the Administrative Agent, for the account any Repayment of the Tranche B Term Lenders, on the date of such prepayment.
(h) Notwithstanding any other provisions of this Section 2.10, to the extent any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, in either case are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on distributing cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or distributed to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences to the Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the distribution to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.10 (provided that no such prepayment of the Term Loans pursuant to this Section 2.10 shall be required in the case of any such Net Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to paragraph (c) of this Section (or such Excess Cash Flow would have been so required if it were Net Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary).Eligible Secured
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