Mandatory Prepayment (i) Within 10 Business Days after the delivery to the Agents and the Lenders of audited annual financial statements pursuant to Section 7.01(a)(iii), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ended December 31, 2014 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii), within 10 Business Days after the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii), the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to the applicable ECF Percentage times the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year; provided, that, with respect to the Fiscal Year ending December 31, 2014, the prepayment required under this Section 2.05(c)(i) shall be measured based on the period beginning on the Effective Date through the end of such Fiscal Year.
(ii) Immediately upon any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of Permitted Disposition) by any Loan Party or its Subsidiaries, the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Administrative Agent as a prepayment of the Loans) shall exceed for all such Dispositions (other than Dispositions under clause (i) of the definition of Permitted Disposition) $2,000,000 in any Fiscal Year, provided, that, for all Dispositions under clause (i) of the definition of Permitted Disposition, all Net Cash Proceeds of such Dispositions shall be deposited into and maintained in a blocked account subject to a Control Agreement until the earlier of (x) such time as the Borrowers and the Agent agree in writing on the application of such Net Cash Proceeds, and upon such agreement such Net Cash Proceeds shall be applied in accordance with such agreement, and (y) 60 days after the receipt of any such Net Cash Proceeds, at which time such Net Cash Proceeds shall be applied in accordance with Section 2.05(d). Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).
(iii) Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness), or upon an Equity Issuance or series of related Equity Issuances that results in a Change of Control, the Borrowers shall prepay the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv) Upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith.
(v) Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Subsidiaries in connection with a Disposition or the receipt of Extraordinary Receipts consisting of insurance proceeds or condemnation awards that are required to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), as the case may be, up to $250,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions and Extraordinary Receipts shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used to replace, repair or restore properties or assets (other than current assets) used in such Person’s business, provided that, (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Administrative Borrower delivers a certificate to the Administrative Agent within 60 days after the date of receipt of such Net Cash Proceeds, stating that such Net Cash Proceeds shall be used to replace, repair or restore properties or assets used in such Person’s business within a period specified in such certificate not to exceed 360 days after the date of receipt of such Net Cash Proceeds (which certificate shall set forth estimates of the Net Cash Proceeds to be so expended), (C) such Net Cash Proceeds are deposited in an account subject to a Control Agreement, and (D) upon the earlier of (1) the expiration of the period specified in the relevant certificate furnished to the Administrative Agent pursuant to clause (B) above or (2) the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv) as applicable.
(vi) The Administrative Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile or other electronic transmission) of any prepayment pursuant to Section 2.05(c)(i), (ii), (iii) and (iv) hereunder (A) in the case of any prepayment of a Reference Rate Loan, not later than 12:00 noon, New York City time, one Business Day before the date of prepayment and (B) in the case of any prepayment of a LIBOR Rate Loan, not later than 12:00 noon, New York City time, three Business Days before the date of prepayment.
Prepayment (a) Provided no Event of Default has occurred and is continuing, Borrower may voluntarily prepay the Indebtedness in full and not in part (i) only on or prior to the day that is two (2) years after the Start-Up Day, and such prepayment shall be subject to payment of Prepayment Premium, and (ii) only on or after the date which is sixty (60) days prior to the Maturity Date and there shall be no Prepayment Premium or penalty assessed against Borrower by reason of such prepayment; provided, however, that Borrower shall give to Lender at least fifteen (15) days prior written notice of any such prepayment. Any prepayment of the Loan shall be made on a Payment Date, and if any such prepayment is not made on a Payment Date, Borrower shall also pay to Lender interest calculated at the Interest Rate that would have accrued on such prepaid Principal Indebtedness through the end of the Interest Accrual Period in which such prepayment occurs. Notwithstanding the foregoing, Permitted Transfers, defeasance in accordance with Section 2.10 and Property Substitutions in accordance with Section 2.14 are not prepayments.
(b) Subject to Section 8.40, at any time during the term of the Loan, if any Borrower is required by Lender under the provisions of any Mortgage to prepay the Loan or any portion thereof in the event of damage to or destruction of, or a Taking of any Individual Property, such Borrower shall pay any Insurance Proceeds or Condemnation proceeds in the following manner and order of priority (i) first, to prepay the Loan to the full extent of the Insurance Proceeds or the Condemnation Proceeds, as applicable, to the extent of the Allocated Loan Amount for the applicable Individual Property, and (ii) to the Borrowers.
(c) All prepayments of the Indebtedness made pursuant to this Section shall be applied by Lender in accordance with the provisions of Section 2.7 hereof.
(d) No Borrower shall be permitted at any time to prepay all or any part of the Loan except as expressly provided in this Section.
Mandatory Prepayments Commitment Reductions (a) No later than the tenth calendar day following the date of receipt by any Obligor or any of its Restricted Subsidiaries of any Net Asset Sale Cash Proceeds from any Asset Sale, the Company shall apply all such Net Asset Sale Cash Proceeds to repay any outstanding Loans as set forth in Section 2.13(a); provided that, if the Borrower provides written notice to the Administrative Agent within seven calendar days of the date any such Net Asset Sale Cash Proceeds are so received of its intention to undertake such an investment, then so long as no Event of Default shall have occurred and be continuing, the Company shall have the option, directly or indirectly or through one or more of its Restricted Subsidiaries, to invest such Net Asset Sale Cash Proceeds within twelve months of receipt thereof in assets of the general type used in the business of the Parent and its Restricted Subsidiaries; provided, further, that, if any portion of such Net Asset Sale Cash Proceeds have not been so reinvested at the end of such twelve-month period, the Borrower shall apply an amount equal to the amount of Net Asset Sale Cash Proceeds that have not been so reinvested as set forth in Section 2.13(a).
(b) No later than the tenth Business Day following the date of receipt by any Obligor or any of its Restricted Subsidiaries of any Net Equity Issuance Event Cash Proceeds from any Equity Issuance Event, the Company shall apply 33% of all such Net Equity Issuance Event Cash Proceeds (such amount, the “Equity Prepayment Amount”) to repay any outstanding Loans as set forth in Section 2.13(a), and each such prepayment shall be accompanied by a permanent reduction of the Revolving Commitments in an amount equal to such Equity Prepayment Amount.
(c) If at any time, the Aggregate Total Exposure exceeds the aggregate Revolving Commitments then in effect, the Borrower shall forthwith prepay first, Loans, and second Cash Collateralize the outstanding amount of Letter of Credit Usage at the Agreed L/C Cash Collateral Amount, to the extent necessary so that the Aggregate Total Exposure shall not exceed the Revolving Commitments then in effect (or, in the case of Letter of Credit Usage, such amounts are fully Cash Collateralized in compliance with the Agreed Cash Collateral Amount).
(d) If, after giving effect to any termination of or reduction of the Revolving Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Commitments, such sublimit shall be automatically reduced by the amount of such excess (including a corresponding reduction to each Issuing Bank’s Letter of Credit Issuer Sublimit (ratably) unless otherwise agreed by the Borrower and each applicable Issuing Bank).
Waivable Mandatory Prepayment Anything contained herein to the contrary notwithstanding, so long as any Tranche A Term Loans are outstanding, in the event Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Tranche B Term Loans, not less than five Business Days prior to the date (the “Required Prepayment Date”) on which Borrower is required to make such Waivable Mandatory Prepayment, Borrower shall notify Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Tranche B Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to Borrower and Administrative Agent of its election to do so on or before the third Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Borrower and Administrative Agent of its election to exercise such option on or before the third Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option, to prepay the Tranche B Term Loans of such Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Tranche B Term Loans in accordance with Section 2.15(b)), and (ii) in an amount equal to that portion of the Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to exercise such option, to prepay the Tranche A Term Loans (which prepayment shall be further applied to the scheduled installments of principal of the Tranche A Term Loans in accordance with Section 2.15(b)), with any excess after such prepayment of the Tranche A Term Loans being further applied in accordance with clauses second through sixth of Section 2.15(b).
Mandatory Prepayments Section 2.20 of the Loan Agreement shall be amended by amending Section 2.20(a) and adding a new Section 2.20(d), each as follows:
(1) Section 2.20(a) shall be amended and restated in its entirety as follows:
(a) Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral other than Inventory in the Ordinary Course of Business, Borrowers shall repay the Advances in an amount equal to the net proceeds of such sale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the outstanding Advances (x) first, to the outstanding principal installments of the Term Loans in the inverse order of the maturities thereof, (y) second, to the outstanding principal installments of the Equipment Loans in the inverse order of the maturities thereof, and (z) third, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(2) a new Section 2.20(d) shall be added as follows: