Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 31, 2019), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 5 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with ~~an equivalent~~ a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, ~~with respect to an Asset Sale~~ except in the case of Net Cash Proceeds of a Debt Incurrence Prepayment Event, ~~Casualty Event or Permitted Sale Leaseback, the~~ such required prepayment percentage ~~in this Section 5.2(a)(i)~~ shall be reduced to (ix) 50% if the Consolidated ~~First Lien Secured~~ Total Debt to Consolidated EBITDA Ratio determined on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) a Pro Forma Basis for the most ~~recent~~ recently ended Test Period ~~ended~~ for which Section 9.1 Financials have been delivered prior to the receipt of such ~~prepayment date~~ Net Cash Proceeds is less than or equal to ~~3.50:1.00~~ 3.25 to 1.0 and greater than 2.50 to 1.0, and (ii2) 0% if the Consolidated ~~First Lien Secured~~ Total Debt to Consolidated EBITDA Ratio determined on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) a Pro Forma Basis for the most ~~recent~~ recently ended Test Period ~~ended~~ for which Section 9.1 Financials have been delivered prior to the receipt of such ~~prepayment date~~ Net Cash Proceeds is less than or equal to ~~2.50:1.00~~2.50 to 1.0; ~~provided, further,~~ provided further that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase ~~Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished)~~ Future Secured Debt with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations to the extent any applicable ~~Indebtedness~~ Future Secured Debt Document requires the issuer of such ~~Indebtedness~~ Future Secured Debt to prepay or make an offer to purchase such ~~Indebtedness~~ Future Secured Debt 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the ~~Indebtedness~~ Future Secured Debt with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations 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 outstanding principal amount of such ~~Indebtedness~~ Future Secured Debt and the outstanding principal amount of Term Loans. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal ~~year (commencing with the fiscal year ending December 31, 2019)~~year, the Borrower shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with clause (c) below, Term Loans with a Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date for which Section 9.1 Financials have been delivered is less than or equal to ~~4.00:1.00~~ 5.5 to 1.0 but greater than ~~3.50:1.00~~ 5.0 to 1.0 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date for which Section 9.1 Financials have been delivered is less than or equal to ~~3.50:1.00~~5.0 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) ~~(i)~~ the Dollar Equivalent principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 4 contracts

Sources: Joinder Agreement (HCA Healthcare, Inc.), Joinder Agreement (HCA Healthcare, Inc.), Restatement Agreement (HCA Healthcare, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (cb) below, Term Loans ~~with an equivalent~~ in a principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the ~~election~~ option of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of ~~an Asset Sale Prepayment Event~~any Disposition of ABL Collateral, ~~Casualty Event or Permitted Sale Leaseback, in each case solely~~ to the extent ~~with respect to any Collateral~~required under the ABL Documents, ~~the Borrower~~ may ~~use a portion of such Net Cash Proceeds~~ be used to prepay ~~or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on~~ outstanding loans under the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term LoansABL Facility. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the portion of the fiscal year ending ~~December~~ on or about January 31, ~~2019)~~2008 following the Closing Date, the Borrower shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with clause (cb) below, Term Loans ~~with~~ in a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 6.0 to 1.0 but greater than ~~3.50:1.00~~ 5.0 to 1.0 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~5.0 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y~~) (i~~) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 2 contracts

Sources: Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp)

Term Loan Prepayments. (iA) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) ~~below~~below and subject to clause (B) of this Section 5.2(a)(i), Term Loans with ~~an equivalent~~ a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event~~; provided that, with respect~~ . (B) In the event that any Tranche B-2 Term Loans are repaid (the “Repaid Tranche B-2 Loans”) prior to ~~an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback,~~ the ~~percentage in~~ third anniversary of the Original Closing Date pursuant to this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral), the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations shall pay to the ~~extent any applicable Indebtedness Document requires the issuer of~~ Lenders having such ~~Indebtedness to prepay or make an offer to purchase such Indebtedness with the proceeds of such Prepayment Event~~Repaid Tranche B-2 Loans, ~~in each case in an amount not to exceed the product of~~ a prepayment premium as follows: (x) ~~the amount~~ 3.00% of such ~~Net Cash Proceeds multiplied by~~ amount so repaid if such prepayment occurs on or after the Original Closing Date but prior to the first anniversary of the Original Closing Date, (y) ~~a fraction,~~ 2.00% of such amount so repaid if such prepayment occurs on or after the ~~numerator of which is the outstanding principal amount~~ first anniversary of the ~~Indebtedness with a Lien on~~ Original Closing Date but prior to the ~~Collateral ranking equal with the Liens securing the Obligations 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~~ second anniversary of the ~~outstanding principal amount~~ Original Closing Date and (z) 1.00% of such ~~Indebtedness and~~ amount so repaid if such prepayment occurs on or after the ~~outstanding principal amount~~ second anniversary of ~~Term Loans~~the Original Closing Date but on or prior to the third anniversary of the Original Closing Date. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2008), the Borrower shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with clause (c) below, Term Loans with a Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 7.0 to 1.0 but greater than ~~3.50:1.00~~ 6.0 to 1.0 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~6.0 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) ~~(i)~~ the Dollar Equivalent principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 2 contracts

Sources: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 31, 2019), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 2 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Appears in 2 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the ~~Borrower~~ Borrowers shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), prepay (or cause to prepay), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to (x) 100% of the Net Cash Proceeds from such Prepayment Event; ~~provided that~~provided, ~~with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback,~~ that (A) the percentage in this Section 5.2(a)(i) shall be reduced to ~~(i)~~ 50% with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as certified by an Authorized Officer of the ~~Borrower~~Borrower Representative) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 4.50 to 1.00 but greater than 4.00 to 1.00 and (iiB) 0% no payment of any Term Loans shall be required under this Section 5.2(a)(ii) with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as certified by an Authorized Officer of the ~~Borrower~~Borrower Representative) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~4.00 to 1.00 (any such amounts not required to prepay the Term Loans as a result of application of this clause (B) and the foregoing clause (A), the “Retained Asset Sale Proceeds”); provided, ~~further,~~ further that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, ~~Casualty Event or Permitted Sale Leaseback, in each case solely to~~ the ~~extent with respect to any Collateral, the Borrower~~ Borrowers may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished)~~ with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any Second Lien Obligations outstanding under this Agreement to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase or prepay such Permitted Other Indebtedness with the proceeds of such Prepayment ~~Event~~Event (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished), in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any Second Lien Obligations outstanding under this Agreement and with respect to which such a requirement to prepay or make an offer to purchase or prepay exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 3130, ~~2019)~~2021, the ~~Borrower~~ Borrowers shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 50% of Excess Cash Flow for such fiscal year; ~~provided~~ provided, that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the ~~Borrower~~Borrower Representative) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 4.50 to 1.00 but greater than ~~3.50:1.00~~ 4.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the ~~Borrower~~Borrower Representative) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~4.00 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) (i) the principal amount of Initial Term Loans and any other Term Loans that are secured on a pari passu basis with the Initial Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 and, Permitted Debt Exchange Notes, Incremental Loans, Permitted Other Indebtedness or, to the extent permitted hereunder, First Lien Loans and Senior Obligations voluntarily prepaid (in each case, including purchases of ~~the Loans~~ such Indebtedness by Holdings, the Borrower and ~~its~~ their Subsidiaries at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or at the option of the Borrower Representative, ~~subject~~ after such fiscal year and prior to the ~~immediately succeeding proviso~~date of the required Excess Cash Flow payment, (ii) to the extent accompanied by permanent reductions of the applicable revolving credit commitments, payments of Revolving Loans or any Incremental Revolving Credit Loans, in each case during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or, at the option of the Borrower Representative, after such fiscal year and prior to the date of the required Excess Cash Flow payment (in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt (other than revolving Indebtedness or intercompany loans); provided that, for the avoidance of doubt, any such voluntary prepayments set forth in clauses (i) and (ii) that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (iiiv) at the option of the Borrower Representative, cash amounts used to make prepayments pursuant to “excess cash flow sweep” provisions applicable to any term loans incurred as Permitted Other Indebtedness that are secured on a pari passu basis with the Initial Term Loans (to the extent ~~accompanied~~ any amounts payable thereunder are paid on a pro rata basis with prepayments of the Term Loans as required by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loansthis Section 5.2(a)(ii)) or, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded ~~Debt~~Debt (other than revolving Indebtedness or intercompany loans); ~~provided~~ provided, that ~~any such~~ a prepayment ~~amount shall, at the option~~ of the ~~Borrower,~~ principal amount of Term Loans pursuant to this Section 5.2(a)(ii) in ~~each case without duplication~~ respect of any ~~such reduction from~~ fiscal year shall only be required in the ~~definition of “Excess Cash Flow”~~ amount by ~~such amounts, be reduced on a dollar-for-dollar basis~~ which the ECF Payment Amount for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of exceeds $~~10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof~~12,500,000. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), or any Refinancing Term Loans or Replacement Term Loans are incurred, in each case to refinance any Class (or Classes) of Term Loans resulting in Net Cash Proceeds (as opposed to such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans arising out of an exchange of existing Term Loans for such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans), the ~~Borrower~~ Borrowers shall within three (3) Business Days of receipt of the Net Cash Proceeds of such Permitted Other ~~Indebtedness~~ Indebtedness, Refinancing Term Loans or Replacement Term Loans prepay, in accordance with ~~clause~~ Section 5.2(c), such Class (cor Classes) ~~below,~~ of Term Loans ~~with~~ in a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, as applicable. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to clause (i) above (a “Foreign Prepayment Event”) or Excess Cash Flow giving rise to a prepayment pursuant to clause (ii) above are prohibited or delayed by any ~~Requirements~~ Requirement of Law or any material agreement binding on such Foreign Subsidiary (so long as any prohibition is not created in contemplation of such prepayment) from being ~~repatriated~~repatriated to any Credit Party, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so ~~long,~~ long as the applicable ~~Requirements~~ Requirement of Law or material agreement will not permit repatriation to any Credit Party (the Credit Parties hereby agreeing to promptly take ~~all~~ commercially reasonable actions reasonably required by the applicable ~~Requirements~~ Requirement of Law or material agreement to permit ~~repatriation~~such repatriation to a Credit Party), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable ~~Requirements~~ Requirement of ~~Law~~Law or material agreement, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation is permitted) applied (net of any ~~taxes~~ taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) ~~to the repayment of the Loans~~ pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower Representative has determined in good ~~faith~~ faith, in consultation with the Administrative Agent, that repatriation of any of or all the repatriation of Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow ~~would~~ could have ~~a material~~ an adverse tax consequence to the Borrowers or any of their Subsidiaries or any Affiliate thereof with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable ~~Subsidiary~~Foreign Subsidiary until such time as it may repatriate such amount without incurring such adverse tax consequences (at which time such amount shall be promptly applied to repay the Term Loans in accordance with this Section 5.2; provided that ~~in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ no such repayment shall be required ~~to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before~~ after the date that is ~~eighteen months~~ one year after such Foreign Prepayment Event or the ~~date an amount equal to~~ end of such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) aboveperiod, ~~(x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments~~ as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtednessapplicable.). For the avoidance of doubt, so long as an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow, as applicable, required to be applied in accordance with Section 5.2(a)(i) or 5.2(a)(ii), respectively, is applied by the Borrowers, nothing in this ~~Agreement,~~ Agreement (including this Section 5 5) shall be construed to require any Foreign Subsidiary to repatriate cash.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.), Second Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), prepay (or cause to prepay), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to (x) 100% of the Net Cash Proceeds from such Prepayment Event; ~~provided that~~provided, ~~with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback,~~ that (A) the percentage in this Section 5.2(a)(i) shall be reduced to ~~(i)~~ 50% with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 4.25 to 1.00 but greater than 3.75 to 1.00 and (iiB) 0% no payment of any Term Loans shall be required under this Section 5.2(a)(ii) with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as 140 certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~3.75 to 1.00 (any such amounts not required to prepay the Term Loans as a result of application of this clause (B) and the foregoing clause (A), the “Retained Asset Sale Proceeds”); provided, ~~further,~~ further that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral~~Casualty Event, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished)~~ with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any First Lien Obligations outstanding under this Agreement to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase or prepay such Permitted Other Indebtedness with the proceeds of such Prepayment ~~Event~~Event (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished), in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any First Lien Obligations outstanding under this Agreement and with respect to which such a requirement to prepay or make an offer to purchase or prepay exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal ~~year (~~year, commencing with the fiscal year ending December 31301, ~~2019~~201726 (but in respect of such fiscal year only, calculated on a “stub year” basis commencing on the first day of the first full fiscal quarter beginning after the Closing Date and ending on December 30, 2017),, the Borrower shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 50% of Excess Cash Flow for such fiscal year; ~~provided~~ provided, that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 4.25 to 1.00 but greater than ~~3.50:1.00~~ 3.75 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~3.75 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) (i) the principal amount of Initialthe 2025 Term Loans and any other Term Loans that are secured on a pari passu basis with the Initial2025 Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 and, Permitted Debt Exchange Notes, Incremental Loans, Permitted Other Indebtedness or, to the extent permitted hereunder, Second Priority Debt voluntarily prepaid (in each case, including purchases of ~~the Loans~~ such Indebtedness by Holdings, the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or at the option of the Borrower, ~~subject~~ after such fiscal year and prior to the ~~immediately succeeding proviso~~date of the required Excess Cash Flow payment, (ii) to the extent accompanied by permanent reductions of the applicable revolving credit commitments, payments of Revolving Loans or any Incremental Revolving Credit Loans, in each case during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or, at the option of the Borrower, after such fiscal year and prior to the date of the required Excess Cash Flow payment (in each case, other than to the extent any such 141 prepayment is funded with the proceeds of Funded Debt (other than revolving Indebtedness or intercompany loans); provided that, for the avoidance of doubt, any such voluntary prepayments set forth in clauses (i) and (ii) that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) ~~and~~ and, (iiiv) at the option of Borrower, cash amounts used to make prepayments pursuant to “excess cash flow sweep” provisions applicable to any term loans incurred as Permitted Other Indebtedness that are secured on a pari passu basis with the Initial2025 Term Loans (to the extent ~~accompanied~~ any amounts payable thereunder are paid on a pro rata basis with prepayments of the Term Loans as required by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loansthis Section 5.2(a)(ii)) or, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded ~~Debt; provided that any such prepayment amount shall~~Debt (other than revolving Indebtedness or intercompany loans), ~~at the option of the Borrower, in each case~~ (v) without duplication of ~~any such reduction~~ (i) amounts deducted from the definition of “Excess Cash Flow” ~~by such amounts~~and (ii) amounts deducted pursuant to clause (viii) below in prior fiscal periods, ~~be reduced on a dollar-for-dollar basis for such fiscal year by~~ at the ~~aggregate~~ election of the Borrower, the amount of ~~clauses~~ Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property were financed with the proceeds of long-term Indebtedness (~~ii)(b~~other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid), (~~f), (g), (h),~~ vi) without duplication of (i~~), (j), (k), (l~~) ~~and (m) of~~ amounts deducted from the definition of “Excess Cash Flow” ~~for~~ and (ii) amounts deducted pursuant to clause (ix) below in prior fiscal periods, at the election of the Borrower, the aggregate amount of cash consideration paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including Permitted Acquisitions) made during such period and permitted hereunder or Investments made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness and intercompany debt) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid) or (2) the issuance of Capital Stock, (vii) at the election of the Borrower, the amount of Restricted Payments paid in cash during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries (other than Restricted Payments made pursuant to Sections 10.5(b)(2), (3), (10), (17) and (18)), to the extent such Restricted Payments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid) or (2) the issuance of Capital Stock, (viii) without duplication of amounts deducted from the definition of “Excess Cash Flow”, at the election of the Borrower, the principal amount of any other secured Indebtedness voluntarily prepaid (in each case, including purchases of such Indebtedness by Holdings, the Borrower and their Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Indebtedness shall be deemed not to exceed the actual purchase price of such Indebtedness below par) during such fiscal ~~year~~year and (ix) without duplication of (i) amounts deducted from the definition of “Excess Cash Flow” and (ii) amounts deducted from Excess Cash Flow in other periods, and at the option of the Borrower (1) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant the Contract Consideration and Planned Expenditures, in each case, relating to Investments (including Permitted Acquisitions) permitted hereunder, Capital Expenditures, Capitalized Software Expenditures and acquisitions of Intellectual Property, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness of the Borrower or the Restricted Subsidiaries) or (B) the issuance of Equity Interests); provided ~~further~~ that ~~prepayments under~~ to the extent that the aggregate amount of cash actually utilized to finance 142 such Investments (including Permitted Acquisitions) permitted hereunder, Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters; provided, that a prepayment of the principal amount of Term Loans pursuant to this Section 5.2(a)(ii) in respect of any fiscal year shall only be required ~~if the required prepayment is in excess of $10,000,000~~ in the ~~aggregate~~ amount by which the ECF Payment Amount for such fiscal year exceeds the greater of (x) $1042,000,000 and ~~solely to~~ (y) 15% of Consolidated EBITDA for the ~~amount of such required prepayment in excess thereof~~most recently ended Test Period (calculated on a Pro Forma Basis. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), or any Refinancing Term Loans or Replacement Term Loans are incurred, in each case to refinance any Class (or Classes) of Term Loans resulting in Net Cash Proceeds (as opposed to such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans arising out of an exchange of existing Term Loans for such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans), the Borrower shall within three (3) Business Days of receipt of the Net Cash Proceeds of such Permitted Other ~~Indebtedness~~ Indebtedness, Refinancing Term Loans or Replacement Term Loans prepay, in accordance with ~~clause~~ Section 5.2(c), such Class (cor Classes) ~~below,~~ of Term Loans ~~with~~ in a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, as applicable. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to clause (i) above (a “Foreign Prepayment Event”) or Excess Cash Flow giving rise to a prepayment pursuant to clause (ii) above are prohibited or delayed by any ~~Requirements~~ Requirement of Law or any material agreement binding on such Foreign Subsidiary (so long as any prohibition is not created in contemplation of such prepayment) from being ~~repatriated~~repatriated to any Credit Party, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so ~~long,~~ long as the applicable ~~Requirements~~ Requirement of Law or material agreement will not permit repatriation to any Credit Party (the Credit Parties hereby agreeing to promptly take ~~all~~ commercially reasonable actions reasonably required by the applicable ~~Requirements~~ Requirement of Law or material agreement to permit ~~repatriation~~such repatriation to a Credit Party), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable ~~Requirements~~ Requirement of ~~Law~~Law or material agreement, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation is permitted) applied (net of any ~~taxes~~ taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) ~~to the repayment of the Loans~~ pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good ~~faith~~ faith, in consultation with the Administrative Agent, that repatriation of any of or all the repatriation of Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow ~~would~~ could have ~~a material~~ an adverse tax consequence to the Borrower or any of its Subsidiaries or any Affiliate thereof with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable ~~Subsidiary~~Foreign Subsidiary until such time as it may repatriate such amount without incurring such adverse tax consequences (at which time such amount shall be promptly applied to repay the Term Loans in accordance with this Section 5.2; provided that ~~in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ no such repayment shall be required ~~to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before~~ after the date that is ~~eighteen months~~ one (1) year after such Foreign Prepayment Event or the ~~date an amount equal to~~ end of such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) aboveperiod, ~~(x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments~~ as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtednessapplicable). For the avoidance of doubt, so long as an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow, as applicable, required to be applied in 143 accordance with Section 5.2(a)(i) or 5.2(a)(ii), respectively, is applied by the Borrower, nothing in this ~~Agreement,~~ Agreement (including this Section 5 5) shall be construed to require any Foreign Subsidiary to repatriate cash.

Appears in 1 contract

Sources: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 31, 2019), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Credit Loans, Incremental Revolving Credit Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (Applovin Corp)

Appears in 1 contract

Sources: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Appears in 1 contract

Sources: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, other than with respect to ~~an Asset Sale~~ a Debt Incurrence Prepayment Event~~, Casualty Event or Permitted Sale Leaseback~~, the percentage in this Section 5.2(a)(i) shall be reduced to (iA) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~ 4.00 to 1.00 but greater than 3.75 to 1.00 and (iiB) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~2.50:1.00~~3.75 to 1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending ~~December 31~~September 30, ~~2019~~2018), if, and solely to the extent, Excess Cash Flow for such fiscal year exceeds $5,000,000, the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to 4.00:1.00 but greater than ~~3.50:1.00~~ 3.75:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~3.75:1.00, ~~minus, at the election of the Borrower,~~ minus (y) (i) the sum during such fiscal year of the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6, First Lien Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 of the First Lien Credit Agreement (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below ~~par~~par offered to all Lenders and Dutch auctions offered to all Lenders of the applicable Class on a pro rata basis, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans at or below par) ~~during such fiscal year, subject to~~ and all voluntary prepayments of Permitted Other Indebtedness (with a Lien on the ~~immediately succeeding proviso, or after such fiscal year and prior to~~ Collateral ranking pari passu with the ~~date of~~ Liens securing the ~~required Excess Cash Flow payment~~ Obligations) (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit ~~Commitments~~Commitments (as defined in the ABL Credit Agreement), Incremental Commitments (as defined in the ABL Credit Agreement), ABL Loans, Swingline Loans (as defined in the ABL Credit Agreement), Extended Revolving Loans (as defined in the ABL Credit ~~Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans~~Agreement), Incremental Revolving ~~Loans~~Loans (as defined in the ABL Credit Agreement), in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided ~~that any such prepayment amount shall~~that, at to the ~~option~~ extent the sum of the ~~Borrower~~amounts specified in this clause (y) exceed the prepayments required to be made pursuant to clause (x), ~~in each case without duplication~~ the full amount of any such ~~reduction~~ excess shall carry over and be deducted from ~~the definition of “Excess Cash Flow” by~~ required payments in subsequent years until such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in time as no excess ~~of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof~~remains. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Subsidiary that is not a Credit Party giving rise to a prepayment pursuant to clause (i) above (a “Non-Credit Party Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being ~~repatriated~~repatriated to the Credit Parties, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation to the Credit Parties (the Credit Parties hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Prepayment Event or Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds from any Non-Credit Party Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of ~~Indebtedness~~Indebtedness of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing in this Agreement, including this Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Bountiful Co)

Appears in 1 contract

Sources: Credit Agreement (Ingersoll Rand Inc.)

Term Loan Prepayments. (iA) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) ~~below~~below and subject to clause (B) of this Section 5.2(a)(i), Term Loans with ~~an equivalent~~ a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event~~; provided that, with respect~~ . (B) In the event that any Initial Tranche B-2 Term Loans are repaid (the “Repaid Tranche B-2 Loans”) prior to ~~an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback,~~ the ~~percentage in~~ third anniversary of the Closing Date pursuant to this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral), the Borrower ~~may use~~ shall pay to Term Lenders having such Repaid Tranche B-2 Loans, a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of prepayment premium as follows: (x) ~~the amount~~ 3.00% of such ~~Net Cash Proceeds multiplied by~~ amount so repaid if such prepayment occurs on or after the Closing Date but prior to the first anniversary of the Closing Date, (y) ~~a fraction,~~ 2.00% of such amount so repaid if such prepayment occurs on or after the ~~numerator of which is the outstanding principal amount~~ first anniversary of the ~~Indebtedness with a Lien on~~ Closing Date but prior to the ~~Collateral ranking equal with the Liens securing the Obligations 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~~ second anniversary of the ~~outstanding principal amount~~ Closing Date and (z) 1.00% of such ~~Indebtedness and~~ amount so repaid if such prepayment occurs on or after the ~~outstanding principal amount~~ second anniversary of ~~Term Loans~~the Closing Date but on or prior to the third anniversary of the Closing Date. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2008), the Borrower shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with clause (c) below, Term Loans with a Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 7.0 to 1.0 but greater than ~~3.50:1.00~~ 6.0 to 1.0 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~6.0 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) ~~(i)~~ the Dollar Equivalent principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (First Data Corp)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the U.S. Borrower, the Spinco Borrower or other applicable Borrower, as the case may be, shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, a Casualty Event or a Permitted Sale ~~Leaseback~~Leaseback Prepayment Event, the percentage in this Section 5.2(a)(i) shall be reduced to (ix) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the U.S. Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) ~~below and as certified by an Authorized Officer of the Borrower~~below) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~ 2.25:1.00 but greater than 2.00:1.00 and (iiy) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the U.S. Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) ~~below and as certified by an Authorized Officer of the Borrower~~below) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~2.50:1.00~~2.00:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale ~~Leaseback~~Leaseback Prepayment Event, in each case solely to the extent with respect to any Collateral, the applicable Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. Notwithstanding the foregoing, no prepayment shall be required with respect to any Prepayment Event until the aggregate amount of Net Cash Proceeds from all such Prepayment Events otherwise required pursuant to this Section 5.2(a)(i), after giving effect to the reinvestment rights set forth herein, exceeds the greater of $400,000,000 and 25.0% of Consolidated EBITDA for the most recently ended Test Period (such amount, the “General Exclusion Amount”) over the life of this agreement, and then only from such Net Cash Proceeds in excess of the General Exclusion Amount. (ii) Not later than ~~ten Business Days~~ the date that is 90 days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2021), if, and solely to the extent, Excess Cash Flow for such fiscal year exceeds the greater of (x) $240,000,000 and (y) 15.0% of Consolidated EBITDA for the most recently ended Test Period, the U.S. Borrower, the Spinco Borrower and/or any other applicable Borrower with respect to outstanding Term Loans, shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) ~~below and as certified by an Authorized Officer of the Borrower~~below) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 2.25 to 1.00 but greater than ~~3.50:1.00~~ 2.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) ~~below and as certified by an Authorized Officer of the Borrower~~below) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~2.00 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) the sum of (iA) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by ~~the Borrower~~ Holdings and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed ~~not~~ to ~~exceed~~ be the ~~actual purchase price~~ face value of such ~~Loans below par~~Loans) and all voluntary prepayments of Permitted Other Indebtedness or Ratio Debt (in each case secured with a Lien on the Collateral ranking pari passu with the Liens securing the Obligations) during such fiscal ~~year, subject to the immediately succeeding proviso,~~ year or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (iiB) to the extent accompanied by permanent ~~reduction of commitments,~~ optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, any Revolving Credit Loans, ~~Swingline Loans,~~ Extended Revolving ~~Loans,~~ Credit Loans and Incremental Revolving Credit Loans voluntarily prepaid pursuant to Section 5.1, (in each case, including purchases of the Loans by Holdings and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed to be the face value of such Loans) during such fiscal year or after such fiscal year and prior to the date of the required Excess Cash Flow payment, in each ~~case~~case in this clause (y), other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided ~~that any such prepayment amount shall~~that, at to the ~~option~~ extent the sum of the ~~Borrower~~amounts specified in this clause (y) exceed the prepayments required to be made pursuant to clause (x), ~~in each case without duplication~~ the full amount of any such ~~reduction~~ excess shall carry over and be deducted from required payments in subsequent years until such time as no excess remains, minus (z) in each case, to the ~~definition~~ extent not deducted in the calculation of “Excess Cash Flow~~” by such amounts~~, ~~be reduced on a dollar-for-dollar basis for such fiscal year by~~ (I) the aggregate amount of ~~clauses~~ cash consideration paid or committed to be paid by Holdings, the Borrowers and the Restricted Subsidiaries (~~ii)(b~~on a consolidated basis) in connection with Permitted Acquisitions or Investments (including acquisitions made during such period constituting Permitted Investments or made pursuant to Section 10.5 to the extent that such Investments were funded with internally generated cash and were not financed with the proceeds received from the issuance or incurrence of long-term Indebtedness), (~~f), (g), (h), (i), (j), (k), (l~~II) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of Restricted Payments (including dividends) paid or committed to be paid in cash during such ~~required prepayment~~ period (on a consolidated basis) by Holdings, the Borrowers and the Restricted Subsidiaries, to the extent such dividends were not financed with the proceeds received from the issuance or incurrence of long-term Indebtedness, (III) payments in ~~excess thereof~~cash by Holdings, the Borrowers and the Restricted Subsidiaries during such period in respect of any purchase price holdbacks, earn-out obligations and long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from Consolidated Net Income and (IV) the aggregate amount of Capital Expenditures or acquisitions of Intellectual Property accrued or made in cash, or committed to be made in cash, during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of long-term Funded Debt of Holdings, the Borrowers or the Restricted Subsidiaries (unless such Indebtedness has been repaid other than with the proceeds of long-term Funded Debt other than intercompany loans). (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the ~~Borrower~~ Borrowers shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to clause (i) or (ii) above (a “Foreign Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any ~~Requirements~~ Requirement of Law from being ~~repatriated~~repatriated to the U.S. Borrower, ~~an amount equal to~~ the Spinco Borrower or any other Borrower organized under the laws of the United States, any state thereof, or the District of Columbia, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable ~~Requirements~~ Requirement of Law will not permit repatriation to the U.S. Borrower, the Spinco Borrower or other Borrower organized under the laws of the United States, any state thereof, or the District of Columbia (the ~~Credit Parties~~ U.S. Borrower, the Spinco Borrower and each other Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable ~~Requirements~~ Requirement of Law to permit such repatriation), and once a such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable ~~Requirements~~ Requirement of Law, ~~an amount equal to~~ such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes ~~that would be~~ payable or reserved against ~~if such amounts were actually repatriated whether or not they are repatriated~~as a result thereof) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that ~~the~~ such Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have ~~a material~~ an adverse tax consequence as reasonably determined by Holdings with respect to such Net Cash Proceeds or Excess Cash Flow, ~~an amount equal to~~ the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds from any Foreign Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above (or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date ~~an amount equal to~~ such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously ~~actually~~ repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above), (x) the U.S. Borrower, the Spinco Borrower ~~shall apply~~ or any other Borrower organized under the laws of the United States, any state thereof, or the District of Columbia applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the ~~Credit Parties~~ U.S. Borrower, the Spinco Borrower or any other Borrower organized under the laws of the United States, any state thereof, or the District of Columbia rather than such Foreign Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of ~~Indebtedness. For~~ Indebtedness of a Foreign Subsidiary. (v) On any date on which the ~~avoidance~~ Spinco Borrower shall cease to be a direct or indirect Restricted Subsidiary of ~~doubt~~Holdings, ~~nothing~~ the Spinco Borrower shall prepay in ~~this Agreement~~full all then-outstanding 2020 Spinco Tranche B-1 Dollar Term Loans, ~~including Section 5 shall be construed to require any Subsidiary to repatriate cash~~together with all accrued and unpaid interest, fees and other amounts due in respect thereof, in Dollars.

Appears in 1 contract

Sources: Credit Agreement (Ingersoll Rand Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ one Business ~~Days~~ Day after ~~receipt of~~ the ~~Net Cash Proceeds~~ occurrence of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ five Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ five Business Days after the ~~Deferred Net Cash Proceeds Payment Date~~Reinvestment Period relating to such Prepayment Event or 180 days thereafter, as applicable), prepay, in accordance with ~~clause~~ paragraph (c) below, the principal amount of Term Loans ~~with~~ in an ~~equivalent principal~~ amount equal to 100% of the Net Cash Proceeds from such Prepayment Event~~; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event~~ . If the Stock or ~~Permitted Sale Leaseback~~Stock Equivalents of any Credit Party is sold or any Credit Party is sold as a going concern on any date, the ~~percentage~~ sale proceeds shall be allocated as follows: (x) that portion of the sale proceeds equal to the aggregate value of “Accounts” and “Cost” of “Inventory” (in ~~this Section 5.2(a)(i~~each case, as defined in the Revolving Loan Credit Agreement”) shall be ~~reduced~~ allocated to the Revolving Credit Collateral (ias defined in the Intercreditor Agreement) ~~50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election~~ of the ~~Borrower, giving effect~~ Credit Parties so sold and shall be deemed to ~~any prepayment described in Section 5.2(a)(ii)(y) below~~ be proceeds thereof and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) ~~a fraction,~~ the ~~numerator~~ balance of ~~which is~~ sale proceeds shall be allocated to the ~~outstanding principal amount~~ Collateral of the ~~Indebtedness with a Lien on~~ Credit Parties so sold and shall be deemed to be proceeds thereof and applied pursuant to the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loansforegoing sentence. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2007), the Borrower shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with ~~clause~~ paragraph (c) below, the principal of Term Loans ~~with a principal~~ in an amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Borrower’s ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect ~~thereto but, at the election of the Borrower, giving effect~~ thereto) to ~~any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower)~~ Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is ~~less~~ no greater than ~~or equal~~ 4.00 to ~~4.00:1.00~~ 1.00 but greater than ~~3.50:1.00~~ 3.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Borrower’s ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect ~~thereto but, at the election of the Borrower, giving effect~~ thereto) to ~~any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower)~~ Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is ~~less~~ no greater than ~~or equal~~ 3.00 to ~~3.50:1.00~~1.00), ~~minus, at the election of the Borrower,~~ minus (y~~) (i~~) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Term Loan Credit Agreement (McJunkin Red Man Holding Corp)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loans.-98- US-DOCS\118329784.▇▇▇▇▇▇▇▇▇▇.6 (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending ~~December~~ January 31, ~~2019~~2022), if, and solely to the extent, Excess Cash Flow for such fiscal year exceeds $10,000,000, the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 1.25 to 1.00 but greater than ~~3.50:1.00~~ 1.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~1.00 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y~~) (i~~) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) and all voluntary prepayments of Permitted Other Indebtedness or Ratio Debt (in each case secured with a Lien on the Collateral ranking pari passu with the Liens securing the Obligations) during such fiscal ~~year, subject to the immediately succeeding proviso,~~ year or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may ~~reduce~~ -99- US-DOCS\118329784.▇▇▇▇▇▇▇▇▇▇.6 (A) the aggregate amount of cash consideration paid by Holdings, the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Permitted Acquisitions or Investments (including acquisitions (but excluding Permitted Investments of the type described in clauses (i) and (ii) thereof) made during such period constituting Permitted Investments or made pursuant to Section 10.5 to the extent that such Investments, were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness or (2) the issuance of Capital Stock, (B) the amount of dividends paid in cash during such period (on a consolidated basis) by Holdings, the Borrower and the Restricted Subsidiaries, to the extent such dividends were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness or (2) the issuance of Capital Stock, (C) payments ~~due~~ in cash by the Borrower and the Restricted Subsidiaries during such period in respect of any purchase price holdbacks, earn-out obligations and long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from ~~time~~ Consolidated Net Income, (D) the aggregate amount of Capital Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to ~~time~~ the extent that such Capital Expenditures or acquisitions were financed with the proceeds of long- term Funded Debt of the Borrower or its Restricted Subsidiaries (unless such Indebtedness has been repaid other than with the proceeds of long-term Funded Debt other than intercompany loans) and (E) (1) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (1) and (2), relating to Permitted Acquisitions (or other Investments), Capital Expenditures, or acquisitions of Intellectual Property or other assets to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually utilized to finance such Permitted Acquisitions (or other Investments), Capital Expenditures, or acquisitions of Intellectual Property or other assets during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of the prepayment required pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall), at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount end of such ~~required prepayment in excess thereof~~period of four consecutive fiscal quarters. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Subsidiary that is not the Borrower or a Subsidiary Credit Party giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.-100- US-DOCS\118329784.▇▇▇▇▇▇▇▇▇▇.6

Appears in 1 contract

Sources: Credit Agreement (Academy Sports & Outdoors, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, a Casualty Event or a Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (ix) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~ 1.25:1.00 but greater than 1.00:1.00 and (iiy) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~2.50:1.00~~1.00:1.00 (any amount of Net Cash Proceeds not required to prepay Term Loans pursuant to this Section 5.2(a)(i), “Retained Asset Sale Proceeds”); provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, ~~in each case solely to the extent with respect to any Collateral,~~ the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending ~~December~~ January 31, ~~2019~~2022), if, and solely to the extent, Excess Cash Flow for such fiscal year exceeds $10,000,000, the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 1.25 to 1.00 but greater than ~~3.50:1.00~~ 1.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~1.00 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y~~) (i~~) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) and all (1) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (1) and (2), relating to Permitted Acquisitions (or other Investments), Capital Expenditures, or acquisitions of Intellectual Property or other assets to be consummated or made during the period of four consecutive fiscal ~~year, subject~~ quarters of the Borrower following the end of such period (except to the ~~immediately succeeding proviso~~extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually utilized to finance such Permitted Acquisitions (or other Investments), Capital Expenditures, or ~~after~~ acquisitions of Intellectual Property or other assets during such following period of four consecutive fiscal ~~year~~ quarters is less than the Contract Consideration and ~~prior~~ Planned Expenditures, the amount of such shortfall shall be added to the ~~date~~ calculation of the prepayment required ~~Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time~~ pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall), at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount end of such ~~required prepayment in excess thereof~~period of four consecutive fiscal quarters. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Subsidiary that is not the Borrower or a Subsidiary Credit Party giving rise to a prepayment pursuant to clause (i) above (a “Non-Credit Party Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being ~~repatriated~~repatriated to the Borrower and the Subsidiary Credit Parties, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation to the Borrower and the Subsidiary Credit Parties (the Credit Parties hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Prepayment Event or Excess Cash Flow would have a material adverse tax consequence to the Borrower or any Subsidiary with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds from any Non-Credit Party Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower and the Subsidiary Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of ~~Indebtedness~~Indebtedness of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (Academy Sports & Outdoors, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, other than with respect to ~~an Asset Sale~~ a Debt Incurrence Prepayment Event~~, Casualty Event or Permitted Sale Leaseback~~, the percentage in this Section 5.2(a)(i) shall be reduced to (iA) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~ 4.00 to 1.00 but greater than 3.75 to 1.00 and (iiB) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~2.50:1.00~~3.75 to 1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending ~~December 31~~September 30, ~~2019~~2018), if, and solely to the extent, Excess Cash Flow for such fiscal year exceeds $5,000,000, the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to 4.00:1.00 but greater than ~~3.50:1.00~~ 3.75:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) ~~for the most recent Test Period ended prior to such prepayment date~~ is less than or equal to ~~3.50:1.00~~3.75:1.00, ~~minus, at the election of the Borrower,~~ minus (y) (i) the sum during such fiscal year of the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6, Second Lien Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 of the Second Lien Credit Agreement (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below ~~par~~par offered to all Lenders and Dutch auctions offered to all Lenders of the applicable Class on a pro rata basis, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans at or below par) ~~during such fiscal year, subject to~~ and all voluntary prepayments of Permitted Other Indebtedness (with a Lien on the ~~immediately succeeding proviso, or after such fiscal year and prior to~~ Collateral ranking pari passu with the ~~date of~~ Liens securing the ~~required Excess Cash Flow payment~~ Obligations) (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit ~~Commitments~~Commitments (as defined in the ABL Credit Agreement), Incremental Commitments (as defined in the ABL Credit Agreement), ABL Loans, Swingline Loans (as defined in the ABL Credit Agreement), Extended Revolving Loans (as defined in the ABL Credit ~~Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans~~Agreement), Incremental Revolving ~~Loans~~Loans (as defined in the ABL Credit Agreement), in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided ~~that any such prepayment amount shall~~that, at to the ~~option~~ extent the sum of the ~~Borrower~~amounts specified in this clause (y) exceed the prepayments required to be made pursuant to clause (x), ~~in each case without duplication~~ the full amount of any such ~~reduction~~ excess shall carry over and be deducted from ~~the definition of “Excess Cash Flow” by~~ required payments in subsequent years until such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in time as no excess ~~of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof~~remains. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Subsidiary that is not a Credit Party giving rise to a prepayment pursuant to clause (i) above (a “Non-Credit Party Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being ~~repatriated~~repatriated to the Credit Parties, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation to the Credit Parties (the Credit Parties hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Prepayment Event or Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds from any Non-Credit Party Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of ~~Indebtedness~~Indebtedness of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing in this Agreement, including this Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: First Lien Credit Agreement (Bountiful Co)

Term Loan Prepayments. 126- (i) On each occasion that a Prepayment Event occurs, the ~~Borrower~~ Borrowers shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (ia) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 3.00 to 1.00 and (iib) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~2.25 to 1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the ~~Borrower~~ Borrowers may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 31, 2019), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the applicable Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with ~~an equivalent~~ a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Indebtedness Document requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ~~ten Business Days~~ the date that is ninety days after the ~~date on which financial statements are required to be delivered pursuant to Section 9.1(a) for~~ last day of any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2007), the ~~Borrower~~ applicable Borrowers shall ~~prepay (or cause to be prepaid)~~prepay, in accordance with clause (c) below, Term Loans with a Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; , provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an ~~Authorized~~ Au thorized Officer of the Parent Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 5.5 to 1.0 but greater than ~~3.50:1.00~~ 5.0 to 1.0 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ratio of Consolidated ~~First Lien Secured~~ Total Debt ~~to Consolidated EBITDA Ratio~~ on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below~~ and as certified by an Authorized Officer of the Parent Borrower) to Consolidated EBITDA for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~5.0 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) ~~(i)~~ the Dollar Equivalent principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (Hca Inc/Tn)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), prepay (or cause to prepay), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to (x) 100% of the Net Cash Proceeds from such Prepayment Event; ~~provided that~~provided, ~~with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback,~~ that (A) the percentage in this Section 5.2(a)(i) shall be reduced to ~~(i)~~ 50% with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 4.25 to 1.00 but greater than 3.75 to 1.00 and (iiB) 0% no payment of any Term Loans shall be required under this Section 5.2(a)(ii) with respect to Asset Sale Prepayment Events and Casualty Events if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment would be required (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in ~~Section 5.2(a)(ii)(y) below~~ the following proviso and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~3.75 to 1.00 (any such amounts not required to prepay the Term Loans as a result of application of this clause (B) and the foregoing clause (A), the “Retained Asset Sale Proceeds”); provided, ~~further,~~ further that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral~~Casualty Event, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished)~~ with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any First Lien Obligations outstanding under this Agreement to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase or prepay such Permitted Other Indebtedness with the proceeds of such Prepayment ~~Event~~Event (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished), in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing ~~the~~ any First Lien Obligations outstanding under this Agreement and with respect to which such a requirement to prepay or make an offer to purchase or prepay exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal ~~year (~~year, commencing with the fiscal year ending December 31, ~~2019)~~2026, the Borrower shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 50% of Excess Cash Flow for such fiscal year; ~~provided~~ provided, that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated ~~First Lien~~ Secured ~~Debt to Consolidated EBITDA~~ Net Leverage Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower, ) for the most recent Test Period ended prior to such prepayment date is less than or equal 139 to 4.25 to 1.00 but greater than 3.75 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated Secured Net Leverage Ratio on the date of prepayment (prior to giving effect thereto but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt~~ 3.75 to ~~Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but~~1.00, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, minus (y) (i) the principal amount of the 2025 Term Loans and any other Term Loans that are secured on a pari passu basis with the 2025 Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 and, Permitted Debt Exchange Notes, Incremental Loans, Permitted Other Indebtedness or, to the extent permitted hereunder, Second Priority Debt voluntarily prepaid (in each case, including purchases of ~~the Loans~~ such Indebtedness by Holdings, the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or at the option of the Borrower, ~~subject~~ after such fiscal year and prior to the ~~immediately succeeding proviso~~date of the required Excess Cash Flow payment, (ii) to the extent accompanied by permanent reductions of the applicable revolving credit commitments, payments of Revolving Loans or any Incremental Revolving Credit Loans, in each case during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or, at the option of the Borrower, after such fiscal year and prior to the date of the required Excess Cash Flow payment (in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt (other than revolving Indebtedness or intercompany loans); provided that, for the avoidance of doubt, any such voluntary prepayments set forth in clauses (i) and (ii) that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time), (iv) ~~and~~ at the option of Borrower, cash amounts used to make prepayments pursuant to “excess cash flow sweep” provisions applicable to any term loans incurred as Permitted Other Indebtedness that are secured on a pari passu basis with the 2025 Term Loans (~~ii)~~ to the extent ~~accompanied~~ any amounts payable thereunder are paid on a pro rata basis with prepayments of the Term Loans as required by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loansthis Section 5.2(a)(ii)) or, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded ~~Debt; provided that any such prepayment amount shall~~Debt (other than revolving Indebtedness or intercompany loans), ~~at the option of the Borrower, in each case~~ (v) without duplication of ~~any such reduction~~ (i) amounts deducted from the definition of “Excess Cash Flow” ~~by such amounts~~and (ii) amounts deducted pursuant to clause (viii) below in prior fiscal periods, ~~be reduced on a dollar-for-dollar basis for such fiscal year by~~ at the ~~aggregate~~ election of the Borrower, the amount of ~~clauses~~ Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property were financed with the proceeds of long-term Indebtedness (~~ii)(b~~other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid), (~~f), (g), (h),~~ vi) without duplication of (i~~), (j), (k), (l~~) ~~and (m) of~~ amounts deducted from the definition of “Excess Cash Flow” ~~for~~ and (ii) amounts deducted pursuant to clause (ix) below in prior fiscal periods, at the election of the Borrower, the aggregate amount of cash consideration paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including Permitted Acquisitions) made during such period and permitted hereunder or Investments made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness and intercompany debt) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid) or (2) the issuance of Capital Stock, (vii) at the election of the Borrower, the amount of Restricted Payments paid in cash during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries (other than Restricted Payments made 140 pursuant to Sections 10.5(b)(2), (3), (10), (17) and (18)), to the extent such Restricted Payments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid) or (2) the issuance of Capital Stock, (viii) without duplication of amounts deducted from the definition of “Excess Cash Flow”, at the election of the Borrower, the principal amount of any other secured Indebtedness voluntarily prepaid (in each case, including purchases of such Indebtedness by Holdings, the Borrower and their Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Indebtedness shall be deemed not to exceed the actual purchase price of such Indebtedness below par) during such fiscal ~~year~~year and (ix) without duplication of (i) amounts deducted from the definition of “Excess Cash Flow” and (ii) amounts deducted from Excess Cash Flow in other periods, and at the option of the Borrower (1) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant the Contract Consideration and Planned Expenditures, in each case, relating to Investments (including Permitted Acquisitions) permitted hereunder, Capital Expenditures, Capitalized Software Expenditures and acquisitions of Intellectual Property, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness of the Borrower or the Restricted Subsidiaries) or (B) the issuance of Equity Interests); provided ~~further~~ that ~~prepayments under~~ to the extent that the aggregate amount of cash actually utilized to finance such Investments (including Permitted Acquisitions) permitted hereunder, Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters; provided, that a prepayment of the principal amount of Term Loans pursuant to this Section 5.2(a)(ii) in respect of any fiscal year shall only be required ~~if the required prepayment is in excess of $10,000,000~~ in the ~~aggregate~~ amount by which the ECF Payment Amount for such fiscal year exceeds the greater of (x) $42,000,000 and ~~solely to~~ (y) 15% of Consolidated EBITDA for the ~~amount of such required prepayment in excess thereof~~most recently ended Test Period (calculated on a Pro Forma Basis. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), or any Refinancing Term Loans or Replacement Term Loans are incurred, in each case to refinance any Class (or Classes) of Term Loans resulting in Net Cash Proceeds (as opposed to such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans arising out of an exchange of existing Term Loans for such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans), the Borrower shall within three (3) Business Days of receipt of the Net Cash Proceeds of such Permitted Other ~~Indebtedness~~ Indebtedness, Refinancing Term Loans or Replacement Term Loans prepay, in accordance with ~~clause~~ Section 5.2(c), such Class (cor Classes) ~~below,~~ of Term Loans ~~with~~ in a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, as applicable. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to clause (i) above (a “Foreign Prepayment Event”) or Excess Cash Flow giving rise to a prepayment pursuant to clause (ii) above are prohibited or delayed by any ~~Requirements~~ Requirement of Law or any material agreement binding on such Foreign Subsidiary (so long as any prohibition is not created in contemplation of such prepayment) from being ~~repatriated~~repatriated to any Credit Party, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so ~~long,~~ long as the applicable ~~Requirements~~ Requirement of Law or 141 material agreement will not permit repatriation to any Credit Party (the Credit Parties hereby agreeing to promptly take ~~all~~ commercially reasonable actions reasonably required by the applicable ~~Requirements~~ Requirement of Law or material agreement to permit ~~repatriation~~such repatriation to a Credit Party), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable ~~Requirements~~ Requirement of ~~Law~~Law or material agreement, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation is permitted) applied (net of any ~~taxes~~ taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) ~~to the repayment of the Loans~~ pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good ~~faith~~ faith, in consultation with the Administrative Agent, that repatriation of any of or all the repatriation of Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow ~~would~~ could have ~~a material~~ an adverse tax consequence to the Borrower or any of its Subsidiaries or any Affiliate thereof with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable ~~Subsidiary~~Foreign Subsidiary until such time as it may repatriate such amount without incurring such adverse tax consequences (at which time such amount shall be promptly applied to repay the Term Loans in accordance with this Section 5.2; provided that ~~in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ no such repayment shall be required ~~to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before~~ after the date that is ~~eighteen months~~ one (1) year after such Foreign Prepayment Event or the ~~date an amount equal to~~ end of such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) aboveperiod, ~~(x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments~~ as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtednessapplicable). For the avoidance of doubt, so long as an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow, as applicable, required to be applied in accordance with Section 5.2(a)(i) or 5.2(a)(ii), respectively, is applied by the Borrower, nothing in this ~~Agreement,~~ Agreement (including this Section 5 5) shall be construed to require any Foreign Subsidiary to repatriate cash.

Appears in 1 contract

Sources: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash ~~Proceeds~~Proceeds Amount, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), ~~prepay~~prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to ~~100~~100.0% (such percentage, as it may be reduced as described below, the “Net Cash Proceeds Percentage”) of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Net Cash Proceeds of any Asset Sale Prepayment Event and Casualty Prepayment Event, ~~Casualty~~ (A) the Net Cash Proceeds Percentage shall be reduced to 50.0% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or ~~Permitted Sale Leaseback~~Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the ~~percentage~~ prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.50 to 1.00 but greater than 2.00 to 1.00 as of the most recently ended Test Period and (B) the Net Cash Proceeds Percentage shall be reduced to 0.00% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.00 to 1.00 as of the most recently ended Test Period (in each case of the foregoing sub-clauses (A) and (B), such Net Cash Proceeds (if any) not required to prepay the Term Loans pursuant to this Section 5.2(a)(i), the “Retained Asset Sale Proceeds”) (provided that, in each case, for purposes of determining the Net Cash Proceeds Percentage and Retained Asset Sale Proceeds, the First Lien Net Leverage Ratio shall be determined, at the Borrower’s option, either at the time of the applicable Asset Sale, at the time of entry into a definitive agreement in respect thereof or the time of the application of the Net Cash Proceeds therefrom); provided further that, except as set forth in clause (II) below, no prepayment shall be required pursuant to this Section 5.2(a)(i) ~~shall be reduced~~ with respect to ~~(i) 50% if~~ the ~~Consolidated First Lien Secured Debt~~ portion of such Net Cash Proceeds as to ~~Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of~~ which a Deferred Net Cash Proceeds Election is made by the Borrower, ~~giving effect to any prepayment described~~ or is applied for reinvestment, in ~~Section 5.2(a)(ii)(y~~each case, in accordance with clause (II) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00below; ~~provided,~~ provided further, that, : (I) with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral~~Casualty Prepayment Event, the Borrower may use an amount equal to a portion of such Net Cash Proceeds to prepay or repurchase any Other Applicable Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations~~ to the extent any ~~applicable~~ documentation governing such Other Applicable Indebtedness ~~Document~~ requires the issuer or borrower of such Other Applicable Indebtedness to ~~prepay~~ prepay, redeem or make an offer to purchase or prepay or redeem such Other Applicable Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Other Applicable Indebtedness ~~with a Lien on the Collateral ranking equal with the Liens securing the Obligations and~~ with respect to which such a requirement to ~~prepay~~ prepay, redeem or make an offer to ~~purchase~~ purchase, prepay or redeem exists and the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness and the outstanding principal amount of Term Loans; and (II) with respect to any Net Cash Proceeds received with respect to any Asset Sale Prepayment Event (other than Asset Sale Prepayment Event resulting from any Asset Sale consummated in reliance on Section 10.4(b)(ii)) or any Casualty Prepayment Event, the Borrower or any Restricted Subsidiary may, at its option (in its sole discretion), elect (such election, a “Deferred Net Cash Proceeds Election”) to reinvest an amount equal to all or any portion of such Net Cash Proceeds (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds Amount”) in the business of the Borrower or any of the Restricted Subsidiaries, including by using such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any other Investments not prohibited by this Agreement (other than Investments in cash and Cash Equivalents), Capital Expenditures or Capitalized Software Expenditures (without duplication), in each case, at any time on or prior to either (x) the last day of the Reinvestment Period with respect to such Net Cash Proceeds or (y) if the Borrower or any Restricted Subsidiary enters into a commitment or letter of intent to reinvest such Net Cash Proceeds prior to the last day of such Reinvestment Period, the later of (A) the last day of such Reinvestment Period and (B) 180 days after the end of the Reinvestment Period (such last day or day that is 180 days after the last day of the Reinvestment Period, as applicable, the “Deferred Net Cash Proceeds Payment Date”); provided that the Borrower may elect, in its sole discretion, to deem reinvestments or commitments to reinvest that occur or are entered into, as applicable, prior to receipt of the Net Cash Proceeds of the applicable Asset Sale Prepayment Event to be applied in accordance with the provisions of this clause (II) so long as such investment was made or committed to not earlier than 180 days prior to the receipt of the Net Cash Proceeds of the applicable Asset Sale; provided further, that to the extent reinvestments are not made in an amount equal to such Deferred Net Cash Proceeds Amount (without duplication of reinvestments attributable to any Deferred Net Cash Proceeds Amount with respect to any other Prepayment Event (it being understood that to the extent at any given time there is more than one Deferred Net Cash Proceeds Amount outstanding on account of different Prepayment Events, the Borrower shall allocate reinvestments among such Deferred Net Cash Proceeds Amounts in its sole discretion)) on or prior to the applicable Deferred Net Cash Proceeds Payment Date, or if prior to the applicable Deferred Net Cash Proceeds Payment Date reinvestments in an amount equal to any portion of such Deferred Net Cash Proceeds Amount are no longer intended (as determined by the Borrower in its sole discretion) to be so reinvested by the Borrower or its Restricted Subsidiaries on or prior to the applicable Deferred Net Cash Proceeds Payment Date, the Borrower shall, within ten Business Days after the applicable Deferred Net Cash Proceeds Payment Date or the date that the Borrower determines that such portion of the Deferred Net Cash Proceeds Amount is no longer intended to be so reinvested, as applicable, prepay the Term Loans as set forth in this Section 5.2(a)(i). (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are ~~required to be~~ delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the ~~fiscal year~~ Excess Cash Flow Period ending on or about December 31, ~~2019~~2024), the Borrower shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 5050.0% of Excess Cash Flow for such ~~fiscal year~~Excess Cash Flow Period (such percentage, as it may be reduced as described below, the “ECF Payment Percentage”); provided that (A) the ~~percentage~~ ECF Payment Percentage in this Section 5.2(a)(ii) shall be reduced to 2525.0% if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~4.00:1.00~~ 3.20 to 1.00 but greater than ~~3.50:1.00~~ 2.70 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~3.50:1.00~~2.70 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) the sum of (ieach, an “ECF Deduction”): (I) the principal amount of Initial Term ~~Loans~~ Loans, 2024 Refinancing Term Loans, any other Term Loans, Permitted Debt Exchange Notes, Permitted Other Indebtedness and any other Indebtedness, that is voluntarily ~~prepaid pursuant to Section 5.1~~ prepaid, repurchased or ~~Section 13.6~~ redeemed (in each case, including purchases of ~~the Loans~~ such Indebtedness by the Borrower and its Subsidiaries (including pursuant to Section 5.1, Section 13.6 or Section 13.7 (or any other “yank-a-bank” provisions)) at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such ~~fiscal year~~Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior Excess Cash Flow Period) or, ~~subject to~~ at the ~~immediately succeeding proviso~~option of the Borrower, or after such ~~fiscal year~~ Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment with respect to the Excess Cash Flow Period in which actually made, in each case, except to the extent financed with the proceeds of Funded Debt (~~provided that, for~~ other than revolving Indebtedness) of the ~~avoidance of doubt, any~~ Borrower or the Restricted Subsidiaries (unless such ~~voluntary prepayments that have not~~ Funded Debt has been ~~applied~~ repaid and other than intercompany loans made to ~~reduce~~ effect the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and underlying transaction), (iiII) to the extent accompanied by permanent ~~reduction~~ reductions of the applicable revolving credit commitments, ~~optional reductions~~ repayments or prepayments of Revolving ~~Credit Commitments, Extended Revolving Credit Commitments~~ Loans or ~~Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans~~loans under other revolving credit facilities, in each case, ~~other than~~ during such Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to ~~the extent~~ be repaid pursuant to this Section 5.2(a)(ii) for any ~~such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall~~prior Excess Cash Flow Period) or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made, in each ~~case~~ case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (III) [reserved], (IV) at the option of the Borrower, cash amounts used to make prepayments or redemptions pursuant to “excess cash flow sweep” provisions or similar provisions applicable to any term loans or notes incurred as Other Applicable Indebtedness (or the amount of any mandatory offer to redeem or repurchase Other Applicable Indebtedness in the form of notes pursuant to any “excess cash flow sweep” provisions or similar provisions applicable thereto) and only to the extent any amounts payable thereunder are paid (or offered, as applicable) on a pro rata basis (or less than pro rata basis) with prepayments of the Term Loans as required by this Section 5.2(a)(ii), in each case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (V) without duplication of ~~any~~ amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property accrued or made in cash during such ~~reduction~~ Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the ~~definition of “~~Excess Cash ~~Flow”~~ Flow prepayment in the Excess Cash Flow Period in which actually accrued or made) by the Borrower and the Restricted Subsidiaries, in each case, except to the extent that such ~~amounts~~Capital Expenditures, ~~be reduced on a dollar~~Capitalized Software Expenditures or acquisitions of Intellectual Property financed with the proceeds of other long-~~for-dollar basis for~~ term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such ~~fiscal year by~~ Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (VI) without duplication of amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), cash consideration paid by the Borrower ~~shall within three Business Days of receipt of~~ and the ~~Net Cash Proceeds of such Permitted Other Indebtedness prepay,~~ Restricted Subsidiaries in ~~accordance~~ connection with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) ~~to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause~~ permitted Investments (iincluding Permitted Acquisitions) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in (other than clauses (i) and (ii) ~~above~~of the definition of “Permitted Investments”) (including, as without limitation, any earnout, holdback, seller note or other deferred purchase price payments and payments in respect of any notes initially exchanged for any of the ~~case may be~~foregoing), ~~but only so~~ (B) long~~, as~~ -term liabilities of the ~~applicable Requirements~~ Borrower and the Restricted Subsidiaries other than Indebtedness and (C) the amount of ~~Law will not permit repatriation~~ Restricted Payments paid in cash during such period (~~the Credit Parties hereby agreeing to promptly take all actions reasonably required~~ on a consolidated basis) by the ~~applicable Requirements of Law to permit repatriation),~~ Borrower and ~~once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under~~ the ~~applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly~~ Restricted Subsidiaries (~~and in any event not later~~ other than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans Restricted Payments made pursuant to clauses (i2), (3) and (ii17)) ~~above~~of Section 10.5(b), ~~as applicable~~in each case during such Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and ~~(B)~~ prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made), in each case, except to the extent ~~that~~ financed with the proceeds of (1) other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has ~~determined in good faith that repatriation~~ been repaid and other than intercompany loans made to effect the underlying transaction) or (2) the issuance of ~~any~~ Equity Interests, and (VII) without duplication of ~~or all the Net Cash Proceeds of any~~ amounts deducted from Excess Cash Flow ~~would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow~~in other periods, ~~an amount equal to~~ and at the ~~Net Cash Proceeds or Excess Cash Flow so affected may be retained by~~ option of the ~~applicable Subsidiary; provided that in~~ Borrower (1) the ~~case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ aggregate consideration required to be ~~applied to reinvestments~~ paid in cash by the Borrower or ~~prepayments~~ any of its Restricted Subsidiaries pursuant to ~~clause~~ binding agreements, commitments or letters of intent (ithe “Contract Consideration”) ~~above or~~entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of ~~Excess Cash Flow~~each of the foregoing clauses (1) and (2), ~~a date on~~ relating to cash expenditures described in clause (V) or ~~before~~ (VI) above, in each case, to be consummated or made, as applicable, during the ~~date that is eighteen~~ period of 30 consecutive fiscal months ~~after~~ of the ~~date an amount equal to~~ Borrower following the end of such Excess Cash Flow ~~would have so required~~ Period (the “ECF Expenditure Look-Forward Period”), in each case, except to ~~be applied~~ the extent financed with the proceeds of other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to ~~prepayments pursuant~~ effect the underlying transaction); provided that any ECF Deductions with respect to ~~clause (ii) above unless previously actually repatriated in which case such repatriated~~ any Excess Cash Flow ~~shall have been promptly applied~~ Period under this clause (VII) that is not so utilized during the applicable ECF Expenditure Look-Forward Period to ~~the repayment~~ make expenditures of the ~~Term Loans pursuant to~~ type set forth in this clause (iiVII) ~~above, (x) the Borrower~~ shall ~~apply an amount equal~~ be added to ~~such Net Cash Proceeds or~~ Excess Cash Flow ~~to such reinvestments or prepayments as if such Net Cash Proceeds or~~ in the Excess Cash Flow ~~had been received by~~ Period in which the ~~Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated~~ ECF Expenditure Look-Forward Period ends with respect thereto (or, ~~if less~~at the option of the Borrower, ~~the Net Cash Proceeds or~~ any Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.F

Appears in 1 contract

Sources: Credit Agreement (Surgery Partners, Inc.)

Appears in 1 contract

Sources: Second Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash ~~Proceeds~~Proceeds Amount, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), ~~prepay~~prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to ~~100~~100.0% (such percentage, as it may be reduced as described below, the “Net Cash Proceeds Percentage”) of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Net Cash Proceeds of any Asset Sale Prepayment Event and Casualty Prepayment Event, ~~Casualty~~ (A) the Net Cash Proceeds Percentage shall be reduced to 50.0% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or ~~Permitted Sale Leaseback~~Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the ~~percentage~~ prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.50 to 1.00 but greater than 2.00 to 1.00 as of the most recently ended Test Period and (B) the Net Cash Proceeds Percentage shall be reduced to 0.00% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.00 to 1.00 as of the most recently ended Test Period (in each case of the foregoing sub-clauses (A) and (B), such Net Cash Proceeds (if any) not required to prepay the Term Loans pursuant to this Section 5.2(a)(i), the “Retained Asset Sale Proceeds”) (provided that, in each case, for purposes of determining the Net Cash Proceeds Percentage and Retained Asset Sale Proceeds, the First Lien Net Leverage Ratio shall be determined, at the Borrower’s option, either at the time of the applicable Asset Sale, at the time of entry into a definitive agreement in respect thereof or the time of the application of the Net Cash Proceeds therefrom); provided further that, except as set forth in clause (II) below, no prepayment shall be required pursuant to this Section 5.2(a)(i) ~~shall be reduced~~ with respect to ~~(i) 50% if~~ the ~~Consolidated First Lien Secured Debt~~ portion of such Net Cash Proceeds as to ~~Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of~~ which a Deferred Net Cash Proceeds Election is made by the Borrower, ~~giving effect to any prepayment described~~ or is applied for reinvestment, in ~~Section 5.2(a)(ii)(y~~each case, in accordance with clause (II) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00below; ~~provided,~~ provided further, that, : (I) with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral~~Casualty Prepayment Event, the Borrower may use an amount equal to a portion of such Net Cash Proceeds to prepay or repurchase any Other Applicable Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations~~ to the extent any ~~applicable~~ documentation governing such Other Applicable Indebtedness ~~Document~~ requires the issuer or borrower of such Other Applicable Indebtedness to ~~prepay~~ prepay, redeem or make an offer to purchase or prepay or redeem such Other Applicable Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Other Applicable Indebtedness ~~with a Lien on the Collateral ranking equal with the Liens securing the Obligations and~~ with respect to which such a requirement to ~~prepay~~ prepay, redeem or make an offer to ~~purchase~~ purchase, prepay or redeem exists and the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness and the outstanding principal amount of Term Loans; and (II) with respect to any Net Cash Proceeds received with respect to any Asset Sale Prepayment Event (other than Asset Sale Prepayment Event resulting from any Asset Sale consummated in reliance on Section 10.4(b)(ii)) or any Casualty Prepayment Event, the Borrower or any Restricted Subsidiary may, at its option (in its sole discretion), elect (such election, a “Deferred Net Cash Proceeds Election”) to reinvest an amount equal to all or any portion of such Net Cash Proceeds (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds Amount”) in the business of the Borrower or any of the Restricted Subsidiaries, including by using such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any other Investments not prohibited by this Agreement (other than Investments in cash and Cash Equivalents), Capital Expenditures or Capitalized Software Expenditures (without duplication), in each case, at any time on or prior to either (x) the last day of the Reinvestment Period with respect to such Net Cash Proceeds or (y) if the Borrower or any Restricted Subsidiary enters into a commitment or letter of intent to reinvest such Net Cash Proceeds prior to the last day of such Reinvestment Period, the later of (A) the last day of such Reinvestment Period and (B) 180 days after the end of the Reinvestment Period (such last day or day that is 180 days after the last day of the Reinvestment Period, as applicable, the “Deferred Net Cash Proceeds Payment Date”); provided that the Borrower may elect, in its sole discretion, to deem reinvestments or commitments to reinvest that occur or are entered into, as applicable, prior to receipt of the Net Cash Proceeds of the applicable Asset Sale Prepayment Event to be applied in accordance with the provisions of this clause (II) so long as such investment was made or committed to not earlier than 180 days prior to the receipt of the Net Cash Proceeds of the applicable Asset Sale; provided further, that to the extent reinvestments are not made in an amount equal to such Deferred Net Cash Proceeds Amount (without duplication of reinvestments attributable to any Deferred Net Cash Proceeds Amount with respect to any other Prepayment Event (it being understood that to the extent at any given time there is more than one Deferred Net Cash Proceeds Amount outstanding on account of different Prepayment Events, the Borrower shall allocate reinvestments among such Deferred Net Cash Proceeds Amounts in its sole discretion)) on or prior to the applicable Deferred Net Cash Proceeds Payment Date, or if prior to the applicable Deferred Net Cash Proceeds Payment Date reinvestments in an amount equal to any portion of such Deferred Net Cash Proceeds Amount are no longer intended (as determined by the Borrower in its sole discretion) to be so reinvested by the Borrower or its Restricted Subsidiaries on or prior to the applicable Deferred Net Cash Proceeds Payment Date, the Borrower shall, within ten Business Days after the applicable Deferred Net Cash Proceeds Payment Date or the date that the Borrower determines that such portion of the Deferred Net Cash Proceeds Amount is no longer intended to be so reinvested, as applicable, prepay the Term Loans as set forth in this Section 5.2(a)(i). (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are ~~required to be~~ delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the ~~fiscal year~~ Excess Cash Flow Period ending on or about December 31, ~~2019~~2024), the Borrower shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 5050.0% of Excess Cash Flow for such ~~fiscal year~~Excess Cash Flow Period (such percentage, as it may be reduced as described below, the “ECF Payment Percentage”); provided that (A) the ~~percentage~~ ECF Payment Percentage in this Section 5.2(a)(ii) shall be reduced to 2525.0% if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~4.00:1.00~~ 3.20 to 1.00 but greater than ~~3.50:1.00~~ 2.70 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~3.50:1.00~~2.70 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) the sum of (ieach, an “ECF Deduction”): (I) the principal amount of Initial Term ~~Loans~~ Loans, 2024 Refinancing Term Loans, 2025 Refinancing Term Loans, any other Term Loans, Permitted Debt Exchange Notes, Permitted Other Indebtedness and any other Indebtedness, that is voluntarily ~~prepaid pursuant to Section 5.1~~ prepaid, repurchased or ~~Section 13.6~~ redeemed (in each case, including purchases of ~~the Loans~~ such Indebtedness by the Borrower and its Subsidiaries (including pursuant to Section 5.1, Section 13.6 or Section 13.7 (or any other “yank-a-bank” provisions)) at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such ~~fiscal year~~Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior Excess Cash Flow Period) or, ~~subject to~~ at the ~~immediately succeeding proviso~~option of the Borrower, or after such ~~fiscal year~~ Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment with respect to the Excess Cash Flow Period in which actually made, in each case, except to the extent financed with the proceeds of Funded Debt (~~provided that, for~~ other than revolving Indebtedness) of the ~~avoidance of doubt, any~~ Borrower or the Restricted Subsidiaries (unless such ~~voluntary prepayments that have not~~ Funded Debt has been ~~applied~~ repaid and other than intercompany loans made to ~~reduce~~ effect the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and underlying transaction), (iiII) to the extent accompanied by permanent ~~reduction~~ reductions of the applicable revolving credit commitments, ~~optional reductions~~ repayments or prepayments of Revolving ~~Credit Commitments, Extended Revolving Credit Commitments~~ Loans or ~~Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans~~loans under other revolving credit facilities, in each case, ~~other than~~ during such Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to ~~the extent~~ be repaid pursuant to this Section 5.2(a)(ii) for any ~~such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall~~prior Excess Cash Flow Period) or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made, in each ~~case~~ case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (III) [reserved], (IV) at the option of the Borrower, cash amounts used to make prepayments or redemptions pursuant to “excess cash flow sweep” provisions or similar provisions applicable to any term loans or notes incurred as Other Applicable Indebtedness (or the amount of any mandatory offer to redeem or repurchase Other Applicable Indebtedness in the form of notes pursuant to any “excess cash flow sweep” provisions or similar provisions applicable thereto) and only to the extent any amounts payable thereunder are paid (or offered, as applicable) on a pro rata basis (or less than pro rata basis) with prepayments of the Term Loans as required by this Section 5.2(a)(ii), in each case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (V) without duplication of ~~any~~ amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property accrued or made in cash during such ~~reduction~~ Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the ~~definition of “~~Excess Cash ~~Flow”~~ Flow prepayment in the Excess Cash Flow Period in which actually accrued or made) by the Borrower and the Restricted Subsidiaries, in each case, except to the extent that such ~~amounts~~Capital Expenditures, ~~be reduced on a dollar~~Capitalized Software Expenditures or acquisitions of Intellectual Property financed with the proceeds of other long-~~for-dollar basis for~~ term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such ~~fiscal year by~~ Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (VI) without duplication of amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), cash consideration paid by the Borrower ~~shall within three Business Days of receipt of~~ and the ~~Net Cash Proceeds of such Permitted Other Indebtedness prepay,~~ Restricted Subsidiaries in ~~accordance~~ connection with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) ~~to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause~~ permitted Investments (iincluding Permitted Acquisitions) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in (other than clauses (i) and (ii) ~~above~~of the definition of “Permitted Investments”) (including, as without limitation, any earnout, holdback, seller note or other deferred purchase price payments and payments in respect of any notes initially exchanged for any of the ~~case may be~~foregoing), ~~but only so~~ (B) long~~, as~~ -term liabilities of the ~~applicable Requirements~~ Borrower and the Restricted Subsidiaries other than Indebtedness and (C) the amount of ~~Law will not permit repatriation~~ Restricted Payments paid in cash during such period (~~the Credit Parties hereby agreeing to promptly take all actions reasonably required~~ on a consolidated basis) by the ~~applicable Requirements of Law to permit repatriation),~~ Borrower and ~~once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under~~ the ~~applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly~~ Restricted Subsidiaries (~~and in any event not later~~ other than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans Restricted Payments made pursuant to clauses (i2), (3) and (ii17)) ~~above~~of Section 10.5(b), ~~as applicable~~in each case during such Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and ~~(B)~~ prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made), in each case, except to the extent ~~that~~ financed with the proceeds of (1) other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has ~~determined in good faith that repatriation~~ been repaid and other than intercompany loans made to effect the underlying transaction) or (2) the issuance of ~~any~~ Equity Interests, and (VII) without duplication of ~~or all the Net Cash Proceeds of any~~ amounts deducted from Excess Cash Flow ~~would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow~~in other periods, ~~an amount equal to~~ and at the ~~Net Cash Proceeds or Excess Cash Flow so affected may be retained by~~ option of the ~~applicable Subsidiary; provided that in~~ Borrower (1) the ~~case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ aggregate consideration required to be ~~applied to reinvestments~~ paid in cash by the Borrower or ~~prepayments~~ any of its Restricted Subsidiaries pursuant to ~~clause~~ binding agreements, commitments or letters of intent (ithe “Contract Consideration”) ~~above or~~entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of ~~Excess Cash Flow~~each of the foregoing clauses (1) and (2), ~~a date on~~ relating to cash expenditures described in clause (V) or ~~before~~ (VI) above, in each case, to be consummated or made, as applicable, during the ~~date that is eighteen~~ period of 30 consecutive fiscal months ~~after~~ of the ~~date an amount equal to~~ Borrower following the end of such Excess Cash Flow ~~would have so required~~ Period (the “ECF Expenditure Look-Forward Period”), in each case, except to ~~be applied~~ the extent financed with the proceeds of other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to ~~prepayments pursuant~~ effect the underlying transaction); provided that any ECF Deductions with respect to ~~clause (ii) above unless previously actually repatriated in which case such repatriated~~ any Excess Cash Flow ~~shall have been promptly applied~~ Period under this clause (VII) that is not so utilized during the applicable ECF Expenditure Look-Forward Period to ~~the repayment~~ make expenditures of the ~~Term Loans pursuant to~~ type set forth in this clause (iiVII) ~~above, (x) the Borrower~~ shall ~~apply an amount equal~~ be added to ~~such Net Cash Proceeds or~~ Excess Cash Flow ~~to such reinvestments or prepayments as if such Net Cash Proceeds or~~ in the Excess Cash Flow ~~had been received by~~ Period in which the ~~Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated~~ ECF Expenditure Look-Forward Period ends with respect thereto (or, ~~if less,~~ at the ~~Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment~~ option of ~~Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.~~th

Appears in 1 contract

Sources: Credit Agreement (Surgery Partners, Inc.)

Appears in 1 contract

Sources: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; ~~provided that~~provided, that with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (i) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 2.75:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~2.25:1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback~~Casualty Event, in each case solely to the extent with respect to any Collateral, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking senior or equal with the Liens securing the Obligations to the extent any ~~applicable~~ such Indebtedness ~~Document~~ requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking senior or equal with the Liens securing the Obligations 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 outstanding principal amount of such Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending ~~December 31~~January 30, ~~2019~~2021), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (~~prior~~ recalculated to ~~giving~~ give pro forma effect thereto ~~but~~and, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 3.50:1.00 but greater than ~~3.50:1.00~~ 3.00:1.00 and (B) ~~no payment of any Term Loans shall be required under~~ the percentage in this Section 5.2(a)(ii) shall be reduced to 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (~~prior~~ recalculated to ~~giving~~ give pro forma effect thereto ~~but~~and, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~3.00:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 or, to the extent permitted hereunder, voluntary prepayment of Permitted Other Indebtedness and/or voluntary prepayments of other Indebtedness secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral securing the Loans (including any New Term Loans) (in each case, including ~~purchases of the Loans~~ debt buybacks made by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans or other applicable Indebtedness shall be deemed ~~not~~ to ~~exceed~~ be the actual purchase price of paid for such Loans ~~below par~~or other applicable Indebtedness) and the amount paid in cash in respect of any reduction in the outstanding amount of any Indebtedness resulting from the application of any “yank-a-bank” provisions, in each case during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of ~~Revolving~~ Commitments (as defined in the ABL Credit ~~Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans~~Agreement), Incremental Revolving Commitments (as defined in the ABL Credit Agreement) or ABL Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of the greater of (a) $~~10,000,000~~ 23,000,000 and (b) 10% of Consolidated EBITDA for the most recently ended Test Period in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness~~. (iv)~~ . Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being ~~repatriated,~~ repatriated an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes or legal or other fees to repatriate funds that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all ~~the~~ such Net Cash Proceeds of or any such Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated to the extent such taxes are not taken into account by the definition of Net Cash Proceeds or Excess Cash Flow, as applicable (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Claire's Holdings LLC)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within ~~three~~ five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the ~~occurrence~~ receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash ~~Proceeds~~Proceeds Amount, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), ~~prepay~~prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with an equivalent principal amount equal to ~~100~~100.0% (such percentage, as it may be reduced as described below, the “Net Cash Proceeds Percentage”) of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Net Cash Proceeds of any Asset Sale Prepayment Event and Casualty Prepayment Event, ~~Casualty~~ (A) the Net Cash Proceeds Percentage shall be reduced to 50.0% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or ~~Permitted Sale Leaseback~~Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the ~~percentage~~ prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.50 to 1.00 but greater than 2.00 to 1.00 as of the most recently ended Test Period and (B) the Net Cash Proceeds Percentage shall be reduced to 0.00% if the First Lien Net Leverage Ratio (on a Pro Forma Basis after giving effect to such Asset Sale Prepayment Event or Casualty Prepayment Event, as applicable, and the use of proceeds thereof (including the repayment of any Indebtedness, including, without limitation, the prepayment of Term Loans required by this Section 5.2(a)(i))) is equal to or less than 2.00 to 1.00 as of the most recently ended Test Period (in each case of the foregoing sub-clauses (A) and (B), such Net Cash Proceeds (if any) not required to prepay the Term Loans pursuant to this Section 5.2(a)(i), the “Retained Asset Sale Proceeds”) (provided that, in each case, for purposes of determining the Net Cash Proceeds Percentage and Retained Asset Sale Proceeds, the First Lien Net Leverage Ratio shall be determined, at the Borrower’s option, either at the time of the applicable Asset Sale, at the time of entry into a definitive agreement in respect thereof or the time of the application of the Net Cash Proceeds therefrom); provided further that, except as set forth in clause (II) below, no prepayment shall be required pursuant to this Section 5.2(a)(i) ~~shall be reduced~~ with respect to ~~(i) 50% if~~ the ~~Consolidated First Lien Secured Debt~~ portion of such Net Cash Proceeds as to ~~Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of~~ which a Deferred Net Cash Proceeds Election is made by the Borrower, ~~giving effect to any prepayment described~~ or is applied for reinvestment, in ~~Section 5.2(a)(ii)(y~~each case, in accordance with clause (II) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00 and (ii) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 2.50:1.00below; ~~provided,~~ provided further, that, : (I) with respect to the Net Cash Proceeds of an Asset Sale Prepayment ~~Event, Casualty~~ Event or ~~Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral~~Casualty Prepayment Event, the Borrower may use an amount equal to a portion of such Net Cash Proceeds to prepay or repurchase any Other Applicable Indebtedness ~~(and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations~~ to the extent any ~~applicable~~ documentation governing such Other Applicable Indebtedness ~~Document~~ requires the issuer or borrower of such Other Applicable Indebtedness to ~~prepay~~ prepay, redeem or make an offer to purchase or prepay or redeem such Other Applicable Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Other Applicable Indebtedness ~~with a Lien on the Collateral ranking equal with the Liens securing the Obligations and~~ with respect to which such a requirement to ~~prepay~~ prepay, redeem or make an offer to ~~purchase~~ purchase, prepay or redeem exists and the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness and the outstanding principal amount of Term Loans; and (II) with respect to any Net Cash Proceeds received with respect to any Asset Sale Prepayment Event (other than Asset Sale Prepayment Event resulting from any Asset Sale consummated in reliance on Section 10.4(b)(ii)) or any Casualty Prepayment Event, the Borrower or any Restricted Subsidiary may, at its option (in its sole discretion), elect (such election, a “Deferred Net Cash Proceeds Election”) to reinvest an amount equal to all or any portion of such Net Cash Proceeds (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds Amount”) in the business of the Borrower or any of the Restricted Subsidiaries, including by using such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any other Investments not prohibited by this Agreement (other than Investments in cash and Cash Equivalents), Capital Expenditures or Capitalized Software Expenditures (without duplication), in each case, at any time on or prior to either (x) the last day of the Reinvestment Period with respect to such Net Cash Proceeds or (y) if the Borrower or any Restricted Subsidiary enters into a commitment or letter of intent to reinvest such Net Cash Proceeds prior to the last day of such Reinvestment Period, the later of (A) the last day of such Reinvestment Period and (B) 180 days after the end of the Reinvestment Period (such last day or day that is 180 days after the last day of the Reinvestment Period, as applicable, the “Deferred Net Cash Proceeds Payment Date”); provided that the Borrower may elect, in its sole discretion, to deem reinvestments or commitments to reinvest that occur or are entered into, as applicable, prior to receipt of the Net Cash Proceeds of the applicable Asset Sale Prepayment Event to be applied in accordance with the provisions of this clause (II) so long as such investment was made or committed to not earlier than 180 days prior to the receipt of the Net Cash Proceeds of the applicable Asset Sale; provided further, that to the extent reinvestments are not made in an amount equal to such Deferred Net Cash Proceeds Amount (without duplication of reinvestments attributable to any Deferred Net Cash Proceeds Amount with respect to any other Prepayment Event (it being understood that to the extent at any given time there is more than one Deferred Net Cash Proceeds Amount outstanding on account of different Prepayment Events, the Borrower shall allocate reinvestments among such Deferred Net Cash Proceeds Amounts in its sole discretion)) on or prior to the applicable Deferred Net Cash Proceeds Payment Date, or if prior to the applicable Deferred Net Cash Proceeds Payment Date reinvestments in an amount equal to any portion of such Deferred Net Cash Proceeds Amount are no longer intended (as determined by the Borrower in its sole discretion) to be so reinvested by the Borrower or its Restricted Subsidiaries on or prior to the applicable Deferred Net Cash Proceeds Payment Date, the Borrower shall, within ten Business Days after the applicable Deferred Net Cash Proceeds Payment Date or the date that the Borrower determines that such portion of the Deferred Net Cash Proceeds Amount is no longer intended to be so reinvested, as applicable, prepay the Term Loans as set forth in this Section 5.2(a)(i). (ii) Not later than ~~ten~~ fifteen (15) Business Days after the date on which financial statements are ~~required to be~~ delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the ~~fiscal year~~ Excess Cash Flow Period ending on or about December 31, ~~2019~~2024), the Borrower shall prepay (or cause to be prepaid), in accordance with ~~clause (c) below~~Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 5050.0% of Excess Cash Flow for such ~~fiscal year~~Excess Cash Flow Period (such percentage, as it may be reduced as described below, the “ECF Payment Percentage”); provided that (A) the ~~percentage~~ ECF Payment Percentage in this Section 5.2(a)(ii) shall be reduced to 2525.0% if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~4.00:1.00~~ 3.20 to 1.00 but greater than ~~3.50:1.00~~ 2.70 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the ~~Consolidated~~ First Lien ~~Secured Debt to Consolidated EBITDA~~ Net Leverage Ratio ~~on the date of prepayment~~ (~~prior to~~ after giving ~~effect~~ Pro Forma Effect thereto ~~but, at the election of the Borrower,~~ and after giving effect to any ~~prepayment~~ prepayment, repurchase or redemption of Indebtedness described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended ~~prior to such prepayment date~~ on the last day of the applicable Excess Cash Flow Period is less than or equal to ~~3.50:1.00~~2.70 to 1.00, ~~minus, at the election of the Borrower,~~ minus (y) the sum of (ieach, an “ECF Deduction”): (I) the principal amount of Initial Term ~~Loans~~ Loans, any other Term Loans, Permitted Debt Exchange Notes, Permitted Other Indebtedness and any other Indebtedness, that is voluntarily ~~prepaid pursuant to Section 5.1~~ prepaid, repurchased or ~~Section 13.6~~ redeemed (in each case, including purchases of ~~the Loans~~ such Indebtedness by the Borrower and its Subsidiaries (including pursuant to Section 5.1, Section 13.6 or Section 13.7 (or any other “yank-a-bank” provisions)) at or below par, in which case the amount of voluntary prepayments of ~~Loans~~ such Indebtedness shall be deemed not to exceed the actual purchase price of such ~~Loans~~ Indebtedness below par) during such ~~fiscal year~~Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior Excess Cash Flow Period) or, ~~subject to~~ at the ~~immediately succeeding proviso~~option of the Borrower, or after such ~~fiscal year~~ Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment with respect to the Excess Cash Flow Period in which actually made, in each case, except to the extent financed with the proceeds of Funded Debt (~~provided that, for~~ other than revolving Indebtedness) of the ~~avoidance of doubt, any~~ Borrower or the Restricted Subsidiaries (unless such ~~voluntary prepayments that have not~~ Funded Debt has been ~~applied~~ repaid and other than intercompany loans made to ~~reduce~~ effect the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and underlying transaction), (iiII) to the extent accompanied by permanent ~~reduction~~ reductions of the applicable revolving credit commitments, ~~optional reductions~~ repayments or prepayments of Revolving ~~Credit Commitments, Extended Revolving Credit Commitments~~ Loans or ~~Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans~~loans under other revolving credit facilities, in each case, ~~other than~~ during such Excess Cash Flow Period (without duplication of any prepayments in such Excess Cash Flow Period that reduced the amount of Excess Cash Flow required to ~~the extent~~ be repaid pursuant to this Section 5.2(a)(ii) for any ~~such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall~~prior Excess Cash Flow Period) or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made, in each ~~case~~ case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (III) [reserved], (IV) at the option of the Borrower, cash amounts used to make prepayments or redemptions pursuant to “excess cash flow sweep” provisions or similar provisions applicable to any term loans or notes incurred as Other Applicable Indebtedness (or the amount of any mandatory offer to redeem or repurchase Other Applicable Indebtedness in the form of notes pursuant to any “excess cash flow sweep” provisions or similar provisions applicable thereto) and only to the extent any amounts payable thereunder are paid (or offered, as applicable) on a pro rata basis (or less than pro rata basis) with prepayments of the Term Loans as required by this Section 5.2(a)(ii), in each case, except to the extent financed with the proceeds of Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (V) without duplication of ~~any~~ amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of Intellectual Property accrued or made in cash during such ~~reduction~~ Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the ~~definition of “~~Excess Cash ~~Flow”~~ Flow prepayment in the Excess Cash Flow Period in which actually accrued or made) by the Borrower and the Restricted Subsidiaries, in each case, except to the extent that such ~~amounts~~Capital Expenditures, ~~be reduced on a dollar~~Capitalized Software Expenditures or acquisitions of Intellectual Property financed with the proceeds of other long-~~for-dollar basis for~~ term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such ~~fiscal year by~~ Funded Debt has been repaid and other than intercompany loans made to effect the underlying transaction), (VI) without duplication of amounts deducted pursuant to clause (VII) below in prior Excess Cash Flow Periods, at the election of the Borrower, the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), cash consideration paid by the Borrower ~~shall within three Business Days of receipt of~~ and the ~~Net Cash Proceeds of such Permitted Other Indebtedness prepay,~~ Restricted Subsidiaries in ~~accordance~~ connection with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) ~~to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause~~ permitted Investments (iincluding Permitted Acquisitions) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in (other than clauses (i) and (ii) ~~above~~of the definition of “Permitted Investments”) (including, as without limitation, any earnout, holdback, seller note or other deferred purchase price payments and payments in respect of any notes initially exchanged for any of the ~~case may be~~foregoing), ~~but only so~~ (B) long~~, as~~ -term liabilities of the ~~applicable Requirements~~ Borrower and the Restricted Subsidiaries other than Indebtedness and (C) the amount of ~~Law will not permit repatriation~~ Restricted Payments paid in cash during such period (~~the Credit Parties hereby agreeing to promptly take all actions reasonably required~~ on a consolidated basis) by the ~~applicable Requirements of Law to permit repatriation),~~ Borrower and ~~once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under~~ the ~~applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly~~ Restricted Subsidiaries (~~and in any event not later~~ other than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans Restricted Payments made pursuant to clauses (i2), (3) and (ii17)) ~~above~~of Section 10.5(b), ~~as applicable~~in each case during such Excess Cash Flow Period (or, at the option of the Borrower, after such Excess Cash Flow Period and ~~(B)~~ prior to the date of the required Excess Cash Flow payment in lieu of being deducted from the Excess Cash Flow prepayment in the Excess Cash Flow Period in which actually made), in each case, except to the extent ~~that~~ financed with the proceeds of (1) other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has ~~determined in good faith that repatriation~~ been repaid and other than intercompany loans made to effect the underlying transaction) or (2) the issuance of ~~any~~ Equity Interests, and (VII) without duplication of ~~or all the Net Cash Proceeds of any~~ amounts deducted from Excess Cash Flow ~~would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow~~in other periods, ~~an amount equal to~~ and at the ~~Net Cash Proceeds or Excess Cash Flow so affected may be retained by~~ option of the ~~applicable Subsidiary; provided that in~~ Borrower (1) the ~~case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been~~ aggregate consideration required to be ~~applied to reinvestments~~ paid in cash by the Borrower or ~~prepayments~~ any of its Restricted Subsidiaries pursuant to ~~clause~~ binding agreements, commitments or letters of intent (ithe “Contract Consideration”) ~~above or~~entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of ~~Excess Cash Flow~~each of the foregoing clauses (1) and (2), ~~a date on~~ relating to cash expenditures described in clause (V) or ~~before~~ (VI) above, in each case, to be consummated or made, as applicable, during the ~~date that is eighteen~~ period of 30 consecutive fiscal months ~~after~~ of the ~~date an amount equal to~~ Borrower following the end of such Excess Cash Flow ~~would have so required~~ Period (the “ECF Expenditure Look-Forward Period”), in each case, except to ~~be applied~~ the extent financed with the proceeds of other long-term Funded Debt (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries (unless such Funded Debt has been repaid and other than intercompany loans made to ~~prepayments pursuant~~ effect the underlying transaction); provided that any ECF Deductions with respect to ~~clause (ii) above unless previously actually repatriated in which case such repatriated~~ any Excess Cash Flow ~~shall have been promptly applied~~ Period under this clause (VII) that is not so utilized during the applicable ECF Expenditure Look-Forward Period to ~~the repayment~~ make expenditures of the ~~Term Loans pursuant to~~ type set forth in this clause (iiVII) ~~above, (x) the Borrower~~ shall ~~apply an amount equal~~ be added to ~~such Net Cash Proceeds or~~ Excess Cash Flow ~~to such reinvestments or prepayments as if such Net Cash Proceeds or~~ in the Excess Cash Flow ~~had been received by~~ Period in which the ~~Credit Parties rather than such Subsidiary~~ECF Expenditure Look-Forward Period ends with respect thereto (or, ~~less~~ at the ~~amount~~ option of the Borrower, any ~~taxes that would have been payable or reserved against if such Net Cash Proceeds or~~ Excess Cash Flow ~~had been repatriated (or, if less, the Net Cash Proceeds~~ Period ending on or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.prior

Appears in 1 contract

Sources: Credit Agreement (Surgery Partners, Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the ~~Borrower~~ Borrowers shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (ia) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 3.00 to 1.00 and (iib) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~2.25 to 1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the ~~Borrower~~ Borrowers may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2018), the ~~Borrower~~ Borrowers shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 4.25 to 1.00 but greater than ~~3.50:1.00~~ 3.75 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~3.75 to 1.00 and (C) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if Excess Cash Flow during such fiscal year is equal to or less than $25,000,000 (and then only any excess amount shall be required to be repaid pursuant to this Section 5.2(a)(ii)), ~~minus, at the election of the Borrower,~~ minus (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (~~in each case,~~ including purchases of the Loans by ~~the Borrower~~ Holdings and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal ~~year, subject to the immediately succeeding proviso,~~ year or after such fiscal year and prior to the date of the required Excess Cash Flow ~~payment (provided that~~payment, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent ~~reduction of commitments,~~ optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit ~~Commitments~~Commitment, as applicable, Revolving Credit Loans, ~~Swingline~~ Swing Line Loans, Extended Revolving Credit Loans, Incremental Revolving Credit Loans, in each ~~case~~case of clauses (i) and (ii), other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the ~~Borrower~~ Borrowers shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Subsidiary that is not a Credit Party giving rise to a prepayment pursuant to clause (i) above (a “Non‑Credit Party Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being ~~repatriated~~repatriated to the Credit Parties, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation to the Credit Parties (the Credit Parties hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the ~~Borrower has~~ Borrowers have determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non‑Credit Party Prepayment Event or Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds from any Non‑Credit Party Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the ~~Borrower~~ Borrowers shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of ~~Indebtedness~~Indebtedness of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the ~~Borrower~~ Borrowers shall, within three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (ia) 50% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~ 3.25 to 1.00 and (iib) 0% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~2.50:1.00~~2.50 to 1.00; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral, the ~~Borrower~~ Borrowers may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness 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 Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations 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 outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with and including the fiscal year ending December 31, ~~2019~~2018), the ~~Borrower~~ Borrowers shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~4.00:1.00~~ 4.50 to 1.00 but greater than ~~3.50:1.00~~ 4.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto ~~but, at the election of the Borrower,~~ but giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of ~~the Borrower~~Holdings) for the most recent Test Period ended prior to such prepayment date is less than or equal to ~~3.50:1.00~~4.00 to 1.00 and (C) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if Excess Cash Flow during such fiscal year is equal to or less than $35,000,000 (and then only any excess amount shall be required to be repaid pursuant to this Section 5.2(a)(ii)), ~~minus,~~ minus (at the ~~election~~ option of the ~~Borrower~~Borrowers, to the extent occurring during such period (or occurring after such period and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow period), (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 or voluntary prepayments of other Indebtedness that is secured by a Lien on an equal priority basis with the Liens on the Collateral securing the Obligations (~~in each case,~~ including purchases of the Loans by ~~the Borrower~~ Holdings and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal ~~year, subject to the immediately succeeding proviso,~~ year or after such fiscal year and prior to the date of the required Excess Cash Flow ~~payment (provided that~~payment, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent ~~reduction of commitments,~~ and optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit ~~Commitments~~Commitment, as applicable, Revolving Credit Loans, ~~Swingline~~ Swing Line Loans, Extended Revolving Credit Loans, Incremental Revolving Credit Loans, in each ~~case~~case of clauses (i) and (ii), other than to the extent any such prepayment is funded with the proceeds of Funded Debt~~; provided that any such prepayment amount shall~~, ~~at the option~~ (iii) all cash payments in respect of ~~the Borrower~~Capital Expenditures and all cash payments made to acquire Intellectual Property rights, (iv) cash payments in ~~each case without duplication~~ respect of any ~~such reduction from~~ Permitted Investment (including acquisitions) (other than Investments (x) in cash, Cash Equivalents, or Investment Grade Securities or (y) in the ~~definition of “Excess Cash Flow”~~ Borrowers or any other Credit Party) and/or any Restricted Payment permitted by ~~such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses~~ Section 10.5 (~~ii)(b~~other than Restricted Payments with respect to Junior Debt), (f)v) the aggregate consideration (a) required to be paid in cash by the Borrowers or any Restricted Subsidiary pursuant to binding contracts entered into prior to or during such period relating to Capital Expenditures, all cash payments made to acquire Intellectual Property rights, acquisitions or other Permitted Investments and/or Restricted Payments described in clause (g)iv) above and/or (b) otherwise committed or budgeted to be made in connection with Capital Expenditures, all cash payments made to acquire Intellectual Property rights, acquisitions or other Investments and/or Restricted Payments described in clause (~~h),~~ iv) above (~~i),~~ clauses (~~j), (k), (l~~a) and (mb) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (Bv), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.the

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Term Loan Prepayments. (i) On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event ~~(other than one covered by clause (iii) below)~~ and within ~~ten~~ seven Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ~~ten~~ seven Business Days after the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with ~~an equivalent~~ a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, ~~with respect to an Asset Sale~~ except in the case of Net Cash Proceeds of a Debt Incurrence Prepayment Event, ~~Casualty Event or Permitted Sale Leaseback, the~~ such required prepayment percentage ~~in this Section 5.2(a)(i)~~ shall be reduced to (ix) 50% if the Consolidated ~~First Lien Secured~~ Total Debt to Consolidated EBITDA Ratio determined on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) a Pro Forma Basis for the most ~~recent~~ recently ended Test Period ~~ended~~ for which Section 9.1 Financials have been delivered prior to the receipt of such ~~prepayment date~~ Net Cash Proceeds is less than or equal to ~~3.50:1.00~~ 3.25 to 1.0 and greater than 2.50 to 1.0, and (ii2) 0% if the Consolidated ~~First Lien Secured~~ Total Debt to Consolidated EBITDA Ratio determined on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of the Borrower) a Pro Forma Basis for the most ~~recent~~ recently ended Test Period ~~ended~~ for which Section 9.1 Financials have been delivered prior to the receipt of such ~~prepayment date~~ Net Cash Proceeds is less than or equal to ~~2.50:1.00~~2.50 to 1.0; ~~provided, further,~~ provided further that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale ~~Leaseback, in each case solely to the extent with respect to any Collateral,~~ Leaseback the Borrower may use a portion (or, except as provided below with respect to proceeds of Collateral, all) of such Net Cash Proceeds to prepay or repurchase ~~Indebtedness (and with such prepaid~~ term loans under the Cash Flow Credit Agreement or ~~repurchased Indebtedness permanently extinguished)~~ Future Secured Debt with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations to the extent the Cash Flow Credit Agreement or any applicable ~~Indebtedness~~ Future Secured Debt Document requires the Borrower or the issuer of such ~~Indebtedness~~ Future Secured Debt to prepay or make an offer to purchase such ~~Indebtedness~~ Future Secured Debt with the proceeds of such Prepayment Event, in each case (solely as it relates to proceeds of Collateral) in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the ~~Indebtedness~~ Future Secured Debt with a Lien on the Collateral ranking ~~equal~~ pari passu with the Liens securing the Obligations 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 outstanding principal amount of such ~~Indebtedness~~ Future Secured Debt and the outstanding principal amount of Term Loans. (ii) Not later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year ending December 31, 2019), the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 4.00:1.00 but greater than 3.50:1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended prior to such prepayment date is less than or equal to 3.50:1.00, minus, at the election of the Borrower, (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) during such fiscal year, subject to the immediately succeeding proviso, or after such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, for the avoidance of doubt, any such voluntary prepayments that have not been applied to reduce the payments which may be due from time to time pursuant to this Section 5.2(a)(ii) shall be carried over to subsequent periods, and may reduce the payments due from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the extent accompanied by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Loans, Incremental Revolving Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt; provided that any such prepayment amount shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h), (i), (j), (k), (l) and (m) of the definition of “Excess Cash Flow” for such fiscal year; provided further that prepayments under this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of $10,000,000 in the aggregate and solely to the amount of such required prepayment in excess thereof[Reserved]. (iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness. (iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (i) above or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long, as the applicable Requirements of Law will not permit repatriation (the Credit Parties hereby agreeing to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.

Appears in 1 contract

Sources: Credit Agreement (HCA Healthcare, Inc.)

Common use of Term Loan Prepayments Clause in Contracts