Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d). (b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d). (c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered. (d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 3 contracts
Sources: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingother than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance issuance, incurrence or incurrence contribution toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such 100% of the Net Cash Proceeds thereof shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.2(d).
(c) If, for any Fiscal Year fiscal year of the Borrower Borrower, commencing with the Fiscal Year fiscal year ending December 31, 20112010, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the difference between (i) the ECF Percentage of such Excess Cash Flow and (ii) all optional prepayments of the Term Loans during such fiscal year toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)Commitments. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (iA) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (iiB) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with mandatory prepayments and commitment reductions made pursuant to this Section 2.11 4.2(a), (b) and (c) shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b4.8(b) and, and second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced; provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Base Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 3 contracts
Sources: Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by the Parent Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness issued or incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of within five Business Days after such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(f).
(b) If on any date the Parent Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from (i) any Asset Sale or (ii) any Recovery Event that, in the case of this clause (ii), yields net proceeds to the Parent Borrower or any of its Subsidiaries from any settlement or payment in excess of $10,000,000, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed such receipt toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(f); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(f).
(c) If, If for any Fiscal Year fiscal year of the Parent Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112020, there shall be Excess Cash Flow, the Parent Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)2.12(f) an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all optional prepayments of Term Loans made during such fiscal year pursuant to Section 2.11 to the extent not funded with the proceeds of long-term Indebtedness and (B) the aggregate amount of all optional prepayments of Revolving Credit Loans and Swingline Loans made during such fiscal year pursuant to Section 2.11 to the extent (x) not funded with the proceeds of long-term Indebtedness and (y) accompanying corresponding permanent reductions of the Revolving Credit Commitments. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Parent Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) To the extent that at any time (by virtue of changes in the Exchange Rate or otherwise) (i) the Total USD Revolving Extensions of Credit under the USD Revolving Credit Facility or the Total Multicurrency Revolving Extensions of Credit under the Multicurrency Revolving Credit Facility (including the Dollar Equivalent of any such Revolving Extensions of Credit denominated in an Optional Currency) shall exceed the Total Revolving Credit Commitments under such Revolving Credit Facility then in effect or (ii) the aggregate outstanding principal amount of all Revolving Credit Loans to Foreign Subsidiary Borrowers (including the Dollar Equivalent of the aggregate outstanding principal amount of all Multicurrency Revolving Credit Loans denominated in an Optional Currency to Foreign Subsidiary Borrowers) shall exceed $100,000,000, then, in each case, the Borrowers shall, within four Business Days, repay the Revolving Credit Loans under the applicable Revolving Credit Facility or Swingline Loans to eliminate such excess.
(e) With respect to each borrowing as to which a certificate is required to have been delivered under Section 5.2(c), if and to the extent the applicable Borrower has not applied the proceeds of such borrowing for the purpose that has been specified in such certificate by the fifth Business Day following the date such borrowing is made, then on the next Business Day the applicable Borrower shall prepay such borrowing in an aggregate principal amount equal to the lesser of (i) such unused proceeds and (ii) the amount necessary to cause the aggregate amount of Available Cash to be less than or equal to $75,000,000 at the end of such Business Day.
(f) Amounts to be applied in connection with prepayments of Term Loans made pursuant to this Section 2.11 2.12 shall be applied, first, applied to the prepayment remaining installments of the Term Loans in accordance with Section 2.17(b) and, second, to reduce as directed by the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar LoansParent Borrower. Each prepayment of the Loans under pursuant to this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(eg) Notwithstanding anything the foregoing, to the contrary in extent that any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary that is required to be applied to prepay Term Loans pursuant to this Section 2.11(d2.12 (i) would be prohibited or delayed by any applicable local law (including as a result of laws or regulations relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intragroup and fiduciary and statutory duties of directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Parent Borrower or any applicable Domestic Subsidiary (provided that the Parent Borrower shall take commercially reasonable actions available under local law to permit such repatriation) or 2.17, with respect to the amount (ii) repatriation of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment Parent Borrower or any Domestic Subsidiary would result in material adverse tax consequences as determined in good faith by the Parent Borrower (including as a result of Tranche B any withholding of cash or the upstreaming of cash) with respect to such amount, then in each case, the Parent Borrower shall not be required to apply the portion of such Net Cash Proceeds or Excess Cash Flow so affected to prepay the Term Loans, as Loans at the times provided in clauses (b) and (c) of this Section 2.11(d2.12 but may be retained by the applicable Foreign Subsidiary so long as clause (i) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice or (promptly confirmed in writingii) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit Gabove is applicable, and shall include an offer by the Borrower to prepay on the date once clause (each a “Mandatory Prepayment Date”i) that or (ii) above is 10 no longer applicable, 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 five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans to the extent required pursuant to this Section 2.12; provided that no such prepayment of the Term Loans pursuant to this Section 2.12 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Parent Borrower believes in good faith would result in material adverse tax consequences, if on or before the date of the Prepayment Option Noticeon which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the relevant Term Loans of such Lender by Parent Borrower applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds or Excess Cash Flow to such Lender’s Tranche B Term Loansreinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Parent Borrower rather than such Foreign Subsidiary, less the amount of additional 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). On For the Mandatory Prepayment Dateavoidance of doubt, (i) the Borrower shall pay non-application of any Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary, in each case, to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted extent permitted by the relevant Lendersthis Section 2.12(d), and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts Loans pursuant to clause clauses (ii), any portion b) or (c) of the Tranche B Prepayment Amount this Section 2.12 will not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisconstitute an Event of Default hereunder.
Appears in 2 contracts
Sources: Credit Agreement (CONMED Corp), Credit Agreement (CONMED Corp)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing6.02), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans Loan as set forth in Section 2.11(d2.05(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or (other than the Capital Markets Division Disposition and the Concept Capital Markets Division Disposition), Recovery Event or Extraordinary Receipt then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans Loan as set forth in Section 2.11(d2.05(d); provided thatprovided, notwithstanding that (i) the foregoingaggregate Net Cash Proceeds of Asset Sales, Recovery Events and Extraordinary Receipts that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any Fiscal Year and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Loan as set forth in Section 2.11(d2.05(d).
(c) If, for at any time during any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash FlowQuarter, the Borrower shallreceives Excess Payments under the Redemption Agreement, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage an amount equal to 100% of such Excess Cash Flow Payments shall be applied on the Payment Date immediately succeeding the last day of such Fiscal Quarter toward the prepayment of the Term Loans and the reduction of the Revolving Commitments Loan as set forth in Section 2.11(d2.05(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts All amounts to be applied in connection with prepayments of the Loan made pursuant to this Section 2.11 2.05 shall be applied, first, applied to the prepayment Loan and to the principal repayment installments thereof in inverse order of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmaturity. Each prepayment of the Loans Loan under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.05 shall be accompanied by accrued interest to the date of such prepayment on the amount so prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Sanders Morris Harris Group Inc), Credit Agreement (Sanders Morris Harris Group Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness permitted to be incurred by any Group Member in accordance with Section 7.2 or Capital Stock issued in compliance with 6.1, except for Indebtedness incurred pursuant to Section 76.1(d) or any initial cash proceeds that are related and Credit Agreement Refinancing Indebtedness), concurrently with, and as a condition to a financing the closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.6(d).
(b) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to the excess of (i) ECF Percentage of such Excess Cash Flow over (ii) to the extent not funded with the proceeds of Indebtedness (other than Indebtedness in respect of any revolving credit facility), the aggregate amount of all Purchases by the Company or MS Holdco (determined by the actual cash purchase price paid and not the par value of the Loans purchased) and voluntary prepayments of Term Loans made by the Borrower during the Specified Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Loans as set forth in Section 2.6(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the date on which the financial statements of the Company referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event which, when taken together with the Net Cash Proceeds theretofore received by any Group Member from such Asset Sale or Recovery Event (collectively the “Cumulative Net Cash Proceeds Amount”), are greater than $5,000,000 (the “Asset Sale Reduction Amount”), then, to the extent unless a Reinvestment Notice shall not have been delivered in respect thereofEvent has occurred, such Net Cash Proceeds (up to an amount equal to the excess of the Cumulative Net Cash Proceeds Amount over the Asset Sale Reduction Amount) shall be applied from such Net Cash Proceeds within ten days after the Business Days of such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the to either (x) prepay outstanding Term Loans and in accordance with Section 2.6(d) or (y) if such Net Cash Proceeds are from the Revolving Loans as set forth sale or disposition of any, or a Recovery Event in Section 2.11(d)respect of, ABL Priority Collateral, repay outstanding borrowings under the ABL Credit Agreement; provided that, that notwithstanding the foregoing, foregoing on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment any Asset Sale Event shall be applied toward to prepay the prepayment of the outstanding Term Loans and the Revolving Loans as set forth in Section 2.11(d2.6(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.6(b) and (c) shall be applied, firstto (A) in the case of a prepayment pursuant to clause (b) above, to the prepayment of the Term Loans and (B) at the Company’s option in the case of a prepayment pursuant to clause (c) above, outstanding Indebtedness incurred pursuant to Section 6.1(d) and (e) (collectively, “Other Applicable Indebtedness”); provided that any such Net Cash Proceeds may be applied to Other Applicable Indebtedness only (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Term Loans in accordance with Section 2.17(bthe terms hereof) unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans; provided further that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and, secondin any event, within ten Business Days after the date of such rejection) be applied to reduce prepay Term Loans in accordance with the Swingline Loans and terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansoutstanding). Each prepayment of the Term Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Administrative Agent will promptly notify each Lender holding Term Loans of the contents of the Company’s repayment notice and of such Lender’s pro rata share of any repayment. Each such Lender may reject all or a portion of its pro rata share of any mandatory repayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds shall be retained by the Company and its Restricted Subsidiaries (subject to any prepayment obligations it may have with respect to other Indebtedness).
(e) Notwithstanding anything the foregoing, if the Company reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Sections 2.6(b) and (c) would result in material adverse tax consequences or violate local law in respect of upstreaming proceeds (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), in each case as set forth in a certificate delivered by a Responsible Officer of the Company to the contrary in Section 2.11(dAdministrative Agent, then the Borrower shall not be required to prepay such amounts as required under Sections 2.6(b) and (c) until such material tax consequences or 2.17local law violation no longer exists (any such limitation, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the a “Tranche B Prepayment AmountRepatriation Limitation”), at any time when Tranche A Term Loans remain outstanding, ; provided that the Borrower will, shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in lieu of applying order to effect such amount prepayments without violating local law or incurring material adverse tax consequences.
(f) The Borrower shall deliver to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic (who will notify each Lender) notice (promptly confirmed in writing) requesting that of each prepayment required under this Section 2.6 not less than five Business Days prior to the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving date such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which prepayment shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the principal amount of each Loan (or portion thereof) to be prepaid, and (iii) the Type of each Loan being prepaid. The Borrower shall pay deliver to the Tranche A Term Lenders an amount equal to Administrative Agent, at the portion time of each prepayment required under this Section 2.6, a certificate signed by a Responsible Officer of the Tranche B Prepayment Amount not accepted by Borrower setting forth in reasonable detail the relevant Lenders, and such amount shall be applied to the prepayment calculation of the Tranche A Term Loans; provided that if after the application amount of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisprepayment.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (TMS International Corp.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingother than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within five Business Days after the date of such issuance or incurrence toward the prepayment of the Tranche B Term Loans and the Revolving Loans reduction of any remaining unfunded Tranche B Term Commitments as set forth in Section 2.11(d4.2(d). If any Capital Stock shall be issued by Holdings to any Person other than (i) any Group Member or any employee or director of a Group Member or (ii) the Sponsor or its Control Investment Affiliates or Co-Investors, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied within five Business Days after the date of such issuance toward the prepayment of the Tranche B Term Loans and the reduction of any remaining unfunded Tranche B Term Commitments as set forth in Section 4.2(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, all such Net Cash Proceeds shall be applied within ten days five Business Days after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Tranche B Term Loans and the Revolving Loans reduction of any remaining unfunded Tranche B Term Commitments as set forth in Section 2.11(d4.2(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the such prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)reduction.
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112005, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)Loans. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with the prepayments and the Tranche B Term Commitment reductions made pursuant to this Section 2.11 4.2 shall be applied, first, to the prepayment of the Tranche B Term Loans in accordance with Section 2.17(b) and, second, to permanently reduce the Swingline Loans and then Revolving Loans (without a permanent reduction of the Revolving any required cash payment), any remaining unfunded Tranche B Term Commitments. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Base Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Innophos, Inc.), Credit Agreement (Innophos Investment Holdings, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) Upon receipt by the Borrower of Net Cash Proceeds (whether in the form of a distribution from the Project Company, ProjectCo Pledgor or otherwise) in respect of any Project Company Asset Disposition, Project Company Casualty Event or Project Company Event of Eminent Domain, such Net Cash Proceeds shall be applied to the prepayment of the Loans and other Obligations in the order set forth in Section 2.7(f) and in accordance with the Collateral Agency Agreement.
(b) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member the Borrower or ProjectCo Pledgor (excluding any Debt incurred in accordance with Indebtedness that is permitted by Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.1), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt by the Borrower thereof, if the Borrower issued or incurred such issuance Indebtedness, or incurrence toward within five (5) Business Days of receipt by the ProjectCo Pledgor thereof, if the ProjectCo Pledgor issued or incurred such Indebtedness, to the prepayment of Loans and other Obligations in the order set forth in Section 2.7(f) and in accordance with the Collateral Agency Agreement.
(c) The Borrower shall, on each Repayment Date, commencing with the first Repayment Date, prepay the Term Loans outstanding on such Repayment Date with Excess Cash Flow as follows:
(i) first, prepay the outstanding principal amount of the Term Loans in an amount equal to the lesser of (A) the amount necessary to cause the outstanding principal amount of the Term Loans to equal the Target Debt Balance as of such Repayment Date and (B) 100% of the Revolving Loans as set forth in Section 2.11(d).amount of Excess Cash Flow; and
(bii) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thensecond, to the extent a Reinvestment Notice shall not have been delivered in respect thereofof any remaining amount of Excess Cash Flow following the application of funds as contemplated by clause (i) above, such Net Cash Proceeds shall be applied within ten days after prepay the date that all post-closing adjustments associated therewith have been completed toward the prepayment outstanding principal amount of the Term Loans and in an amount equal to the Revolving Loans excess, if any, of (A) the remaining Excess Cash Flow minus (B) the Excess Cash Distribution Amount.
(d) If any Additional Senior Notes (as set forth in Section 2.11(d); provided that, notwithstanding defined under the foregoing, on each Reinvestment Prepayment DateProjectCo Note Purchase Agreement) shall be issued or incurred by the Project Company, an amount equal to 100% of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Net Cash Proceeds thereof shall be applied toward on the date of receipt thereof by the Borrower to the prepayment of the Term Loans and other Obligations in the Revolving Loans as order set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders2.7(f) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidCollateral Agency Agreement.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If Unless ----------------------------------------------- the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Holdings, the Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries (excluding any Indebtedness permitted by Section 7.2 of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings, the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $3,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111998, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.10(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.10 shall be applied, first, to the prepayment of the Tranche B Term Loans in accordance with Section 2.17(b) and, second, except in the case of Section 2.10(c), to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.10 shall be made, first, made first to ABR Base Rate Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.10 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Nationwide Credit Inc), Credit Agreement (Nationwide Credit Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred Indebtedness is incurred, by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Holdings, the Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries (other than Indebtedness permitted under Section 6.2), then no later than one Business Day after the date of such issuance or incurrence, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward to the prepayment of the Term Loans (together with accrued interest thereon) and or the permanent reduction of the Revolving Loans Credit Commitments, in each case as set forth in Section 2.11(d2.15(d). The provisions of this Section do not constitute a consent to the incurrence of any Indebtedness by Holdings, the Borrower or any of its Subsidiaries.
(b) If on any date Holdings, the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, no later than five Business Days (or, if a Default or Event of Default has occurred and is continuing, three Business Days) after the date of receipt by Holdings, the Borrower or any of its Subsidiaries of such Net Cash Proceeds, an amount equal to the amount of such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward to the prepayment of the Term Loans and (together with accrued interest thereon) and/or the permanent reduction of the Revolving Loans Credit Commitments, as set forth in Section 2.11(d2.15(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward to the prepayment of the Term Loans and (together with accrued interest thereon) and/or the permanent reduction of the Revolving Loans Credit Commitments, as set forth in Section 2.11(d2.15(d). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 6.5.
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112008, there shall be Excess Cash Flow, the Borrower shallthen, on the relevant Excess Cash Flow Application Date, the Borrower shall apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow toward minus (ii) the Optional Prepayment Amount (if any) for such Excess Cash Flow Period to the prepayment of the Term Loans and (together with accrued interest thereon) and/or the permanent reduction of the Revolving Commitments Credit Commitments, as set forth in Section 2.11(d2.15(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five ten days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b5.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.15 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) Credit Commitments shall be accompanied by accrued interest prepayment of the Revolving Credit Loans and/or Swingline Loans to the date extent, if any, that the Revolving Credit Exposures exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swingline Loans then outstanding is less than the amount of such prepayment excess (because L/C Disbursements constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount (not to exceed 102% of the face amount of any such outstanding and unreimbursed Letters of Credit) in cash in a cash collateral account established with the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the amount prepaidAdministrative Agent (which shall in any event be consistent with Section 2.8(j)).
(e) Notwithstanding anything Amounts to be applied pursuant to this Section 2.15 shall be applied first to reduce outstanding ABR Loans of the contrary in Section 2.11(d) or 2.17applicable class of Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans of such class; provided, with respect to the amount of any mandatory prepayment described in Section 2.11 however, that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, may elect that the remainder of such prepayments not applied to prepay ABR Loans be deposited in lieu of applying such amount a collateral account pledged to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice to secure the Obligations (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option NoticeCollateral Account”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower applied thereafter to prepay the Eurodollar Loans on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date last day of the Prepayment Option Notice, next expiring Interest Period for Eurodollar Loans; provided that (A) interest shall continue to accrue thereon at the relevant Term Loans of such Lender by an amount equal rate otherwise applicable under this Agreement to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above Eurodollar Loan in respect of which such Lenders have accepted prepayment (it being understood that a failure deposit was made, until such amounts are applied to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) prepay such Eurodollar Loan, and (iiB) at any time while a Default has occurred and is continuing, the Borrower Administrative Agent may, and upon written direction from the Required Lenders, shall pay apply any or all of such amounts to the Tranche A Term Lenders an amount equal to the portion payment of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Eurodollar Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (GNC Acquisition Holdings Inc.), Credit Agreement (General Nutrition International Inc)
Mandatory Prepayments and Commitment Reductions. (a) If on any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by date the US Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed three Business Days toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.06(c); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and as set forth in Section 4.06(c).
(b) If on any date the Revolving US Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Capital Market Transactions, then an amount equal to 75% of the Net Cash Proceeds from such Capital Market Transaction (to the extent such Net Cash Proceeds, together with the Net Cash Proceeds from prior Capital Markets Transactions after the date hereof are in excess of $200,000,000) shall be applied within five Business Days of such issuance or incurrence to the prepayment of the Term Loans as set forth in Section 2.11(d4.06(c); provided, that, notwithstanding the foregoing, any Net Cash Proceeds from any Capital Markets Transactions of less than $200,000,000 shall be applied to prepay any amounts outstanding under the Revolving Credit Facility.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 4.06 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments4.13(a)(iii). The application of any prepayment pursuant to this Section 2.11 4.06 shall be made, first, to ABR Loans and, second, to Eurodollar LoansLoans in a manner that minimizes amounts due under Section 4.11. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 4.06 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Navistar International Corp), Credit Agreement (Navistar Financial Corp)
Mandatory Prepayments and Commitment Reductions. (a) If Upon the occurrence of any Redeemable Preferred Interests or Debt shall be issued or incurred Equity Issuance by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries Subsidiaries, the Borrowers shall prepay the Revolving Loans in connection with a Permitted Receivables Financing, an amount equal to the lesser of (x) the then outstanding principal amount of the Revolving Loans and accrued and unpaid interest thereon and (y) 100% of the Net Cash Proceeds thereof of such Equity Issuance. Such prepayment shall be applied on made within ten (10) Business Days after the date of such issuance or incurrence Equity Issuance and shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.22(d).
(b) Upon the incurrence of any Debt (as specified in clauses (a) and (j) of the definition thereof) by the Company or any of its Subsidiaries (excluding any Obligations), the Borrowers shall prepay the Revolving Loans in an amount equal to the lesser of (x) the then outstanding principal amount of the Revolving Loans and accrued and unpaid interest thereon and (y) 100% of the Net Cash Proceeds of such Debt. Such prepayment shall be applied within ten (10) Business Days after the date of such incurrence of Debt toward the prepayment of the Revolving Loans as set forth in Section 2.22(d).
(c) If on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale Sale, Purchase Price Refund or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof (within ten (10) Business Days after such Asset Sale, Purchase Price Refund or Recovery Event), the Borrowers shall prepay the Revolving Loans in an amount equal to the lesser of (x) the then outstanding principal amount of the Revolving Loans and accrued and unpaid interest thereon and (y) such Net Cash Proceeds Proceeds. Such prepayment shall be applied within ten days after on the date that all post-closing adjustments associated therewith have been completed 11th Business Day following such Asset Sale, Purchase Price Refund or Recovery Event toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.22(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.22 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) andRevolving Loans, second, to reduce but not the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 2.22 shall be made, first, to ABR Loans andBase Rate Loans, second, to Eurodollar Index Rate Loans and, third, to LIBOR Loans; provided that if such prepayment of LIBOR Loans would result in a breakage cost pursuant to Section 2.18(a), the Company shall have the option to direct the Administrative Agent to invest the prepayment otherwise required to be made on such LIBOR Loans in certificates of deposit or money market accounts issued by the bank serving as the Administrative Agent (but otherwise at the Company’s sole risk) until the end of the currently effective interest periods for such LIBOR Loans or such time as such LIBOR Loans may otherwise be prepaid without a breakage cost pursuant to Section 2.18(a); such investments shall be deemed to be additional collateral for the Obligations and held on the terms of Section 3 hereof. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), If at any time when Tranche A Term Loans remain outstandingthe Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.21 or otherwise, the Borrower willBorrowers shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, in lieu of applying together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.18. Each prepayment shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, third to the Index Rate Loans to the fullest extent thereof, and finally to the LIBOR Loans to the full extent thereof. If after giving effect to prepayment of Tranche B Term all Loans, as provided in Section 2.11(d) abovethe Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, on the date specified in Section 2.11 Borrowers shall be required to provide cash collateral for such prepaymentthe Letters of Credit pursuant to the foregoing sentence, give the Borrowers shall effect the same by paying to the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that Agent, for the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date benefit of the Prepayment Option NoticeIssuing Bank, the relevant Term Loans of such Lender by immediately available funds in an amount equal to the portion required amount, which funds shall be retained by the Administrative Agent, for the benefit of the Tranche B Prepayment Amount indicated Issuing Bank, in such Lender’s Prepayment Option Notice as being applicable a cash collateral account until the earlier to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, occur of (i1) the Borrower date the affected Letters of Credit shall pay have been terminated or cancelled, and (2) the date the Revolving Credit Exposure of all Lenders no longer exceeds the Aggregate Revolving Commitment Amount, at which time the cash collateral shall be paid to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisCompany.
Appears in 2 contracts
Sources: Loan and Security Agreement (NCI, Inc.), Loan and Security Agreement (NCI, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If for any Redeemable Preferred Interests or Debt reason the Total Revolving Extensions of Credit at any time exceed the Total Revolving Commitments then in effect, the Borrower shall be issued or incurred by any Group Member (excluding any Debt incurred immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal not less than the applicable Minimum Collateral Amount multiplied by such excess amount; provided, however, that, subject to 100% Section 2.24(a), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.9(a) unless after the prepayment in full of the Net Cash Proceeds thereof shall be applied on Revolving Loans, Total Revolving Extensions of Credit exceed the date of such issuance or incurrence toward the prepayment of the Term Loans and the Total Revolving Loans as set forth Commitments then in Section 2.11(d)effect.
(b) If on any date any Group Member a Trigger Event or an Event of Default has occurred and is continuing, the Borrower shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term prepay Revolving Loans and Cash Collateralize the Revolving Loans L/C Obligations as set forth in Section 2.11(d2.25(b); provided that. If on any date a Partial Trigger Event has occurred and is continuing, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Borrower shall be applied toward the prepayment of the Term prepay Revolving Loans and Cash Collateralize the Revolving Loans L/C Obligations as set forth in Section 2.11(d2.26(b).
(c) IfThe Borrower shall notify the Administrative Agent of any Change of Control at least five (5) Business Days before the date thereof, for any Fiscal Year which notice shall constitute an offer by the Borrower to terminate all of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, Revolving Commitments of each Lender and to prepay all outstanding Revolving Loans thereunder on the relevant Excess Cash Flow Application Date, apply the ECF Percentage date of such Excess Cash Flow toward the prepayment Change of the Term Loans and the Control. The Administrative Agent shall provide a notice thereof (each, a “Prepayment Notice”) to each Lender as promptly as practicable thereafter. Each Lender may in its sole discretion reject all or a portion of its pro rata share of any offered permanent reduction of the Revolving Commitments as set forth in of each Class under this Section 2.11(d). Each 2.9(c) (such prepayment and commitment reduction shall be made on a date (an declined amounts, such Lender’s “Excess Cash Flow Application DateDeclined Amount”) no later than five days after the earlier of by providing written notice (ieach, a “Rejection Notice”) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent and the Borrower no later than 5:00 P.M. three (for distribution 3) Business Days after delivery of the Prepayment Notice regarding such permanent reduction and related mandatory prepayment (such time, the “Rejection Deadline”). Each Rejection Notice from a given Lender shall specify such Lender’s Declined Amount of each Class of Revolving Commitments held by such Lender. If a Lender fails to deliver a Rejection Notice to the Agents Administrative Agent by the Rejection Deadline with respect to any Class of Revolving Commitments held by such Lender with respect to a Prepayment Notice or such Rejection Notice fails to specify such Lender’s Declined Amount with respect to any Class of Revolving Commitments held by such Lender, any such failure will be deemed an acceptance of the total amount of such permanent reduction of Revolving Commitments of the applicable Class (and the Lenders) and (ii) related mandatory prepayment of Revolving Loans). No later than 2:00 P.M. on the date of the Change of Control, the Borrower shall permanently reduce the Revolving Commitments of each Class of each Lender by an amount equal to such financial statements are actually deliveredLender’s Revolving Commitments of such Class then in effect less such Lender’s Declined Amount for such Class with respect to such Prepayment Notice. Upon the occurrence of any such reduction of Revolving Commitments, each of the Lenders shall assign or purchase, as applicable, at the principal amount thereof, such interests in the Revolving Loans and participation interests in L/C Obligations (but not, for the avoidance of doubt, the related Revolving Commitments) outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, all of the Revolving Loans and participation interests in L/C Obligations outstanding on such date will be held by the remaining Lenders ratably in accordance with their Revolving Commitments after giving effect to such reductions in the Revolving Commitments. Such assignments and purchases shall be made pursuant to such procedures as may be designated by Administrative Agent and shall not be required to be effectuated in accordance with Section 10.6. In addition to the foregoing, to the extent that after giving effect to such reduction and reallocation, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an amount not less than the applicable Minimum Collateral Amount multiplied by such excess amount.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under this Section 2.11 2.9 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e. Each prepayment and Revolving Commitment reduction pursuant to Section 2.9(b) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, allocated pro rata among all Lenders according to their respective Revolving Percentages. Each prepayment and shall include an offer by the Borrower Revolving Commitment reduction pursuant to prepay on the date (each a “Mandatory Prepayment Date”Section 2.9(c) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and allocated in accordance with such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisSection.
Appears in 2 contracts
Sources: Credit Agreement (CorePoint Lodging Inc.), Credit Agreement (CorePoint Lodging Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7other than Excluded Indebtedness) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingafter the Closing Date, an amount equal to to, in the case of the issuance of Capital Stock, 75% of the Net Cash Proceeds thereof, or, in the case of the incurrence of Indebtedness, 100% of the Net Cash Proceeds thereof thereof, shall be applied on within one Business Day of the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the one Business Day of such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans (or, if such date is prior to the Closing Date, toward the reduction of the Tranche B Term Commitments) and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d4.2(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered. No prepayments pursuant to this Section 4.2(c) shall be required after the Term Loans have been paid in full.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 4.2 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Base Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Itron Inc /Wa/), Credit Agreement (Itron Inc /Wa/)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by the Borrower or any Group Member of its Restricted Subsidiaries (excluding any Debt Indebtedness issued or incurred in accordance with Section 7.2 or Capital Stock issued in compliance with (other than Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2(h))), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of within five Business Days after such issuance or incurrence receipt thereof toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d).
(b) If on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent in each case, in excess of $2,500,000 in any single transaction or series of related transactions, unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed such receipt toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d).
(c) If, for [Reserved].
(d) To the extent that at any Fiscal Year time the aggregate outstanding principal amount of the Borrower commencing with Revolving Credit Loans and Letters of Credit shall exceed the Fiscal Year ending December 31Total Revolving Credit Commitments then in effect, 2011, there shall be Excess Cash Flow, then the Borrower shall, on the relevant Excess Cash Flow Application Datewithin four Business Days, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of repay the Revolving Commitments as set forth in Section 2.11(d). Each Credit Loans to eliminate such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredexcess.
(de) Amounts to be applied in connection with prepayments of Term Loans made pursuant to this Section 2.11 2.12 shall be applied, first, applied to the prepayment remaining installments of the Term Loans as directed by the Borrower, or in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction absence of such direction in the Revolving Commitments. The application inverse order of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmaturity. Each prepayment of the Loans under pursuant to this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) Notwithstanding anything any other provisions of this Section 2.12, to the contrary in extent that any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary attributable to a Foreign Subsidiary that is required to be applied to prepay Term Loans pursuant to this Section 2.11(d2.12 (i) would be prohibited or delayed by any applicable local law (including, without limitation, as a result of laws or regulations relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intragroup and fiduciary and statutory duties of directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations) (provided that the Borrower shall take commercially reasonable actions available under local law to permit such repatriation) or 2.17(ii) repatriation of such amount to the Borrower or any Subsidiary would result in material adverse tax consequences as determined in good faith by the Borrower (including, without limitation, as a result of any withholding of cash or the upstreaming of cash) with respect to such amount, then in each case, the Borrower shall not be required to apply the portion of such Net Cash Proceeds so affected to prepay the Term Loans at the times provided in clause (b) of this Section 2.12 but may be retained by the applicable Foreign Subsidiary so long as clause (i) or (ii) above is applicable, and once neither clause (i) nor clause (ii) above is applicable, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans to the extent required pursuant to this Section 2.12; provided that no such prepayment of the Term Loans pursuant to this Section 2.12 shall be required in the case of any such Net Cash Proceeds the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required under this Section 2.12(f) to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice, the Borrower applies an amount equal to (x) the amount of such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds had been received by the Borrower or a Domestic Subsidiary rather than such Foreign Subsidiary, minus (y) the amount of additional Taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary).
(g) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B of Term Loans required to be made pursuant to this Section 2.12 concurrently with or prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Term Loans of the contents of such prepayment notice and of such Lender’s pro rata share of the prepayment. Each Term Loan Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment other than any such mandatory prepayment made in accordance with Section 2.12(a) (such amountdeclined amounts, the “Tranche B Prepayment AmountDeclined Proceeds”), at any time when Tranche A ) of Term Loans remain outstanding, the Borrower will, in lieu of applying such amount required to the prepayment of Tranche B Term Loans, as provided in be made pursuant to this Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a 2.12 by providing written notice (each, a “Prepayment Option Rejection Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, to the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Noticeno later than 5:00 p.m., which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Local Time two Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders Administrative Agent within the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which time frame specified above, any such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall will be deemed an acceptance of the total amount of such mandatory prepayment referenced therein) and (ii) of Term Loans. Any Declined Proceeds shall be returned to the Borrower shall pay (at the Borrower’s expense) to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted be retained by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Forrester Research, Inc.), Credit Agreement (Forrester Research, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred Indebtedness permitted in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that prepayments pursuant to this Section 2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, no such prepayment shall be required to the extent that the aggregate Net Cash Proceeds received from Asset Sales or Recovery Events in any fiscal year is less than $25,000,000 (it being understood that only amounts in excess of such thresholds shall be required to be applied to any prepayment); provided further that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d). Notwithstanding the foregoing, such Net Cash Proceeds in excess of $25,000,000 may be applied to Other Applicable Indebtedness to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans.
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year ending December 31, 2011first full fiscal year after the Closing Date, there shall be Excess Cash FlowFlow in excess of $25,000,000, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow toward over (y) solely to the prepayment extent not funded with the proceeds of Indebtedness, the aggregate amount of all optional prepayments of Term Loans made during such fiscal year pursuant to Section 2.10, plus the aggregate amount of all Loan purchases made during such fiscal year pursuant to Section 2.25 and Section 10.6(e) (including all purchases of Loans (as defined in the Existing Credit Agreement) made during such fiscal year pursuant to Sections 2.25 and 10.6(e) of the Term Loans and Existing Credit Agreement) (provided that the reduction aggregate amount of any such purchase shall be the amount of the Revolving Commitments as set forth Borrower’s cash payment in Section 2.11(drespect of such purchase). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments). The application of any prepayment pursuant to this Section 2.11 shall be made, made first, to ABR Loans and, second, to Eurodollar Term Benchmark Loans or RFR Loans, if applicable. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the contrary in Section 2.11(d) or 2.17, with respect to date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of any mandatory such prepayment described in Section 2.11 that is allocated required to Tranche B Term Loans be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such amount, prepayment (the “Tranche B Prepayment Declined Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount ) by providing written notice to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 no later than two Business Days after the date of such ▇▇▇▇▇▇’s receipt of notice from the Prepayment Option NoticeAdministrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such ▇▇▇▇▇▇’s Declined Amount may be retained by the Borrower.
(f) Notwithstanding any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the relevant Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such Lender by affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, 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 five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences), if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds or Excess Cash Flow to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower shall pay to rather than such Foreign Subsidiary, less the relevant Tranche B Term Lenders amount of additional 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 aggregate amount necessary to prepay Net Cash Proceeds or Excess Cash Flow that portion of the outstanding relevant Term Loans as described above in respect of which would be calculated if received by such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (iiForeign Subsidiary), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (TTM Technologies Inc), Term Loan Credit Agreement (TTM Technologies Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member Loan Parties (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing6.1), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward to the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.6(d).
(b) If If, on any date date, any Group Member Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof on or prior to the fifth Business Day following the receipt of Net Cash Proceeds from such Asset Sale or Recovery Event (the “Reinvestment Notice Date”), such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward Reinvestment Notice Date to the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, 2.6(d) and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward to the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.6(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112013, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application DateDate applicable to such fiscal year, apply the ECF Percentage of such Excess Cash Flow toward to the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.6(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five fifteen (15) days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), 5.1(a) for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.6 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments2.12(b). The application of any prepayment pursuant to this Section 2.11 2.6 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d2.6(d) or 2.172.12, with respect to the Borrower will, in lieu of applying the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans 2.6 (such amount, the “Tranche B Initial Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount ) to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(dparagraph (d) above, on the date specified in Section 2.11 2.6 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit GE, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 ten (10) Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Initial Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisas described above.
Appears in 2 contracts
Sources: Term Loan Agreement (Philadelphia Energy Solutions Inc.), Term Loan Agreement (Philadelphia Energy Solutions Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by the Borrower or any Group Member of its Subsidiaries (excluding any Debt incurred Indebtedness Incurred in accordance with Section 7.2 or Capital Stock issued in compliance accordance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.9), an amount equal to 100% of the Net Cash Proceeds thereof of any Indebtedness Incurred and 75% of the Net Cash Proceeds of any Capital Stock issued shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d); provided that, PROVIDED that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111997, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.10(d). Each Except as set forth in Section 2.16(d), each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”"EXCESS CASH FLOW APPLICATION DATE") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.10 shall be applied, firstFIRST, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, secondSECOND, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.10 shall be made, firstFIRST, to ABR Base Rate Loans and, secondSECOND, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.10 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Axiohm Transaction Solutions Inc), Credit Agreement (Dardel Technologies E U R L)
Mandatory Prepayments and Commitment Reductions. (ai) If any Redeemable Preferred Interests Subject to the last paragraph of this Section 5.02(a), on or Debt prior to the tenth (10th) Business Day after the date on which the Borrower is required to deliver a Compliance Certificate pursuant to Section 9.01(e)(iii) (the “ECF Payment Date”), commencing with the fiscal year ending December 31, 2020 (with regard to the fiscal year ending December 31, 2020, solely for the period from the Closing Date until December 31, 2020), the Borrower shall be issued or incurred by any Group Member (excluding any Debt incurred prepay the Loans in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to: (A) fifty percent (50%) of Consolidated Excess Cash Flow (if any) for such fiscal year, to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.02(a)(viii); provided, that if, with respect to any fiscal year in which a mandatory prepayment pursuant to this Section 5.02(a)(i) is otherwise due, the Total Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.50:1.00, then the Borrower shall prepay the Loans in an amount equal to zero percent (0%) of Consolidated Excess Cash Flow (if any) for such fiscal year; minus (B) to the extent not funded with the proceeds of Indebtedness (other than revolving credit loans) (and to the extent funded with the proceeds of equity, such proceeds shall not increase any other basket hereunder), the sum of all voluntary prepayment of the Loans (to the extent permitted hereunder) made during such fiscal year and, at the Borrower’s option, during the period after the end of such fiscal year and before the applicable ECF Payment Date (provided, that any such prepayment made after the end of such fiscal year but before the applicable ECF Payment Date that Borrower elects to deduct from the payment required under this provision in respect of the prior fiscal year shall not reduce Consolidated Excess Cash Flow for the fiscal year in which such payment is made);.
(bii) If on Upon the incurrence or issuance of any date Indebtedness by any Group Member Credit Party or any of their respective Subsidiaries (other than Indebtedness permitted under Section 10.01 (other than any Permitted Refinancing)), the Borrower shall receive prepay the Loans in an amount equal to one hundred percent (100%) of such Net Cash Debt Proceeds from any Asset Sale or Recovery Event thenplus the Applicable Prepayment Premium, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.02(a)(viii); provided that. Nothing in this Section 5.02(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from any incurrence or issuance of Indebtedness not permitted under the terms of this Agreement.
(iii) Subject to the last paragraph of this Section 5.02(a), notwithstanding no later than five (5) Business Days after the foregoingreceipt by any Credit Party or any of their respective Subsidiaries of any cash proceeds from any Disposition (other than any Disposition permitted under Section 10.04(a), on each Reinvestment Prepayment DateSection 10.04(c), Section 10.04(d), Section 10.04(e), Section 10.04(f), Section 10.04(g), Section 10.04(h), Section 10.04(i), Section 10.04(j), Section 10.04(k), Section 10.04(l), Section 10.04(m), Section 10.04(n), Section 10.04(p), Section 10.04(q), Section 10.04(r), Section 10.04(s) (solely with respect to Permitted Liens arising in the ordinary course of business) and Section 10.04(u)), the Credit Parties or any of their respective Subsidiaries shall prepay the Loans in an amount equal to one hundred percent (100%) of the Reinvestment Prepayment Amount with respect Net Disposition Proceeds from such Disposition, only to the relevant Reinvestment Event shall extent the aggregate amount of such Net Disposition Proceeds in any fiscal year exceeds $1,000,000 in the aggregate and then only in the amount of such excess, plus the Applicable Prepayment Premium, to be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.02(a)(viii).
; provided, that any Credit Party or their respective Subsidiaries may, at their option by notice in writing to the Agents on or prior to the fifth (c5th) If, for any Fiscal Year Business Day after the occurrence of the Borrower commencing with Disposition giving rise to such Net Disposition Proceeds, elect to reinvest such Net Disposition Proceeds in assets that are used or useful in the Fiscal Year ending December 31business of any Credit Party or their Subsidiaries (including Permitted Acquisitions and other permitted Investments) to the extent that any Credit Party or such Subsidiary makes such reinvestment within twelve (12) months following the occurrence of the Disposition; provided, 2011however, there any Credit Party or such Subsidiary may consummate such reinvestment within sixteen (16) months after the occurrence of the Disposition, so long as any Credit Party or such Subsidiary shall have entered into a definitive agreement for the purchase of assets or property within the first twelve (12) month period. Any amounts of Net Disposition Proceeds unused after such period shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments applied as set forth in Section 2.11(d5.02(a)(viii). Each Nothing in this Section 5.02(a)(iii) shall be construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the terms of this Agreement.
(iv) No later than five (5) Business Days after the receipt by Holdings, the Borrower or its Subsidiaries of any Extraordinary Receipts, the Borrower shall prepay the Loans in an amount equal to one hundred percent (100%) of such Extraordinary Receipts, only to the extent the aggregate amount of such Extraordinary Receipts in any fiscal year exceeds $1,000,000 in the aggregate and then only in the amount of such excess, plus the Applicable Prepayment Premium.
(v) No later than five (5) Business Days after the receipt of any indemnification payments received by any Indemnitees (as defined in the Acquisition Agreement) pursuant to the Acquisition Agreement (or by a Credit Party), other than indemnification payments to be made to a third party or in reimbursement of payments made to a third party, the Borrower shall prepay the Loans in an amount equal to one hundred percent (100%) of the net cash proceeds of such indemnification payments received by any Credit Party or received by any Indemnitees (net of all out-of-pocket collection expenses thereof not payable to a Credit Party or Subsidiary thereof (other than reimbursements of reasonable out-of-pocket expenses of such Credit Party or Subsidiary, including, without limitation, any legal or other professional fees)) plus the Applicable Prepayment Premium.
(vi) Upon any reduction in the Deferred Purchase Price obligations of the Purchaser under the Acquisition Agreement as a result of claims with respect to representations, warranties, indemnities or any exercise of set off rights in respect thereof, in each case, other than in respect of payments to be made to a third party or in reimbursement of payments made to a third party, the Borrower shall prepay the Loans in an amount equal to such reduction in the Deferred Purchase Price obligation, such prepayment and commitment reduction shall to be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements amount of the reduction would otherwise have been payable under the Acquisition Agreement plus the Applicable Prepayment Premium.
(vii) Subject to the last paragraph of this Section 5.02(a), no later than five (5) Business Days after the receipt by any Credit Party or any of their respective Subsidiaries of any cash proceeds from any Casualty Event, the Borrower referred shall prepay the Loans in an amount equal to one hundred percent (100%) of such Net Casualty Proceeds, only to the extent the aggregate amount of such Net Casualty Proceeds in any fiscal year exceeds $1,000,000 in the aggregate and then only in the amount of such excess, plus the Applicable Prepayment Premium, to be applied as set forth in Section 6.1(b5.02(a)(viii); provided, for the Fiscal Year with respect to which such prepayment is madethat any Credit Party or their respective Subsidiaries may, are required to be delivered to the Administrative Agent (for distribution at their option by notice in writing to the Agents no later than thirty (30) days following receipt of such Net Casualty Proceeds), use such Net Casualty Proceeds to repair or reinvest such Net Casualty Proceeds in assets that are used or useful in the business of such Credit Party or such Subsidiaries to the extent that such Credit Party or such Subsidiary makes such repair or reinvestment within twelve (12) months following the occurrence of the Casualty Event (or, so long as applicable permits and approvals are being diligently pursued by the LendersBorrower in respect of such repair or reinvestment, sixteen (16) and months); provided, however, the Credit Parties or such Subsidiary may consummate such repair or reinvestment within sixteen (ii16) months after the date occurrence of the Casualty Event, so long as such financial statements are actually deliveredCredit Party or such Subsidiary shall have entered into a definitive agreement for the repair or the purchase of assets or property within the first twelve (12) month period. Any amounts of Net Casualty Proceeds unused after such period shall be applied as set forth in Section 5.02(a)(viii). Nothing in this Section 5.02(a)(vii) shall be construed to permit or waive any Default or Event of Default arising from, directly or indirectly, any Casualty Event.
(dviii) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 5.02(a)(i) shall be applied, first, to the prepayment installments of the Term Loans pursuant to Section 2.05(b) in accordance direct order of maturity of such scheduled installments. All other amounts to be applied in connection with prepayments made pursuant to Section 2.17(b5.02(a) and, second, shall be made to reduce the Swingline Loans and then Revolving Loans without a permanent reduction installments of the Revolving Commitments. The application of any prepayment Term Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans2.05(b) in inverse order of maturity of such scheduled installments. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 5.02 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Tiga Acquisition Corp.), Credit Agreement (Tiga Acquisition Corp.)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by Holdings, the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued as in compliance with Section 7) or effect on the date of this Agreement), then on the date of such incurrence, the Loans shall be prepaid (without any initial cash proceeds that are related automatic reduction of Revolving Credit Commitments), by an amount equal to a financing of a fixed principal the amount of Receivables Assets or the Net Cash Proceeds of such incurrence. The provisions of this Section do not constitute a consent to the incurrence of any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received Indebtedness by Holdings, the Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Subsidiaries.
(b) If Unless the Required Lenders shall otherwise agree, if on any date Holdings, the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale Sale, Purchase Price Refund or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, on the date of receipt by Holdings, the Borrower or any of its Subsidiaries of such Net Cash Proceeds Proceeds, the Loans shall be applied within ten days after prepaid (without any automatic reduction of Revolving Credit Commitments) by an amount equal to the date that all post-closing adjustments associated therewith have been completed toward the prepayment amount of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)such Net Cash Proceeds; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, Date the Loans shall be prepaid (without any automatic reduction of Revolving Credit Commitments) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment Event. The provisions of the Term Loans and the Revolving Loans as set forth in this Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on do not constitute a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered consent to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application consummation of any prepayment pursuant to this Disposition not permitted by Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid7.5.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Gallipolis Care LLC), Credit Agreement (Villa Pines Care LLC)
Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any Redeemable Preferred Interests of its Subsidiaries (or Holdings on behalf of the Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds from any:
(i) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Asset Sale, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.17, the Depositary Agreement and as set forth in Section 2.9(c).
(ii) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Recovery Event, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.16, the Depositary Agreement and as set forth in Section 2.9(c).
(iii) Specified Asset Disposition, it shall deposit (or cause to be deposited) upon receipt thereof an amount equal to the Specified AD Prepayment Amount to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by Section 7.5(n), the Depositary Agreement and as set forth in Section 2.9(c).
(iv) PPA Buyout, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account in an amount equal to:
(A) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout does not exceed 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), the PPA Buyout Prepayment Amount and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c); or
(B) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout exceeds 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), 100% of such Net Cash Proceeds and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reductions of all Commitments, in each case, to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c).
(b) If any Indebtedness shall be issued or incurred by the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward to the prepayment of Loans in the Term Loans inverse order of maturity and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders2.9(c) and (ii) in accordance with the date such financial statements are actually deliveredDepositary Agreement.
(di) Amounts to be applied in connection with prepayments of Loans and reductions of Commitments made pursuant to this Section 2.11 paragraphs (a)(i), (a)(ii), (a)(iv)(B) and (b) above shall be appliedapplied without penalty or premium (except for breakage costs, if any) as follows: (A) first, simultaneously to the prepayment of prepay the Term Loans in accordance with Section 2.17(b2.15(b) and, and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8; (B) second, to reduce repay the Swingline Loans and then Revolving Loans without a permanent reduction in accordance with Section 2.15(c); (C) third, to ratably Cash Collateralize any outstanding Letters of Credit; and (D) fourth, any amount remaining may be retained by the Borrower; provided that all of the Revolving CommitmentsCommitments shall have been terminated in accordance with Section 2.15(c).
(ii) Amounts to be applied in connection with prepayments of Term Loans made pursuant to paragraphs (a)(iii) and (a)(iv)(A) above shall be applied without penalty or premium (except for breakage costs, if any) to prepay the Term Loans in accordance with Section 2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8. 44 Sunshine (National) – Credit Agreement
(iii) The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. .
(iv) Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued incurred by the Company or any Restricted Subsidiary (other than any Indebtedness permitted to be incurred by any Group Member (excluding any Debt incurred such Person in accordance with Section 7.2 or Capital Stock issued in compliance with Section 76.2) or any initial cash proceeds that are related (other than Permitted Credit Agreement Refinancing Debt), concurrently with, and as a condition to a financing closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in clause (f) of this Section 2.11(d)2.6.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011Excess Cash Flow Interim Period, there shall be Excess Cash Flow, an amount equal to the Borrower excess of (i) Required Percentage of such Excess Cash Flow over (ii) to the extent not funded with the proceeds of Indebtedness constituting “long term indebtedness” under GAAP (other than Indebtedness in respect of any revolving credit facility), the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined by the actual cash purchase price paid by such Permitted Auction Purchaser for such Purchase and not the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction permitted hereunder, (2) voluntary prepayments of Term Loans made by the Company and (3) any amount of excess cash flow payments paid to lenders under Indebtedness of the Company or its Subsidiaries secured by assets other than Collateral, in each case during the Specified Period for such Excess Cash Flow Interim Period, shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in clause (f) of this Section 2.11(d)2.6. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) 10 Business Days after the date on which the financial statements of the Borrower Company referred to in Section 6.1(b5.1(a) or 5.1(b), for the Fiscal Year fiscal quarter with respect to which such prepayment is made, are required to be delivered to the Lenders or (ii) if such financial statements are actually delivered prior to the date on which they are required to be delivered pursuant to Section 5.1(a) or 5.1(b), the last Business Day of the calendar month in which such financial statements are actually delivered (but in no event later than the date set forth in clause (i) of this sentence).
(c) If, on any date, the Company or any Restricted Subsidiary shall receive Net Proceeds from any Asset Sale or any Event of Loss in excess of $2,000,000 in any fiscal year, to the extent required by Section 5.14, 6.5(a)(vi) or 6.5(e), such Net Proceeds (to the extent in excess of $2,000,000) shall be applied within five Business Days of such date to prepay (A) outstanding Term Loans in accordance with this Section 2.6 and (B) at the Company’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis incurred as Permitted First Priority Refinancing Debt or Permitted Incremental Indebtedness (collectively, “Other Applicable Indebtedness”). Any such Net Proceeds may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Event of Loss is required under the terms of such Other Applicable Indebtedness (with any remaining Net Proceeds applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Proceeds relative to Term Lenders, in which case such Net Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Proceeds, the declined amount of such Net Proceeds shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding).
(d) If, on any date, the Borrowers shall be required to prepay Term Loans pursuant to the terms of the Escrow Agreement, then the Borrowers shall apply an amount equal to the Escrow Proceeds Prepayment Amount within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.6.
(e) Each of the Borrowers shall deliver to the Administrative Agent (for distribution notice of each prepayment required under this Section 2.6 not less than three Business Days prior to the Agents and date such prepayment shall be made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Lenders) Mandatory Prepayment Date and (ii) the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent will promptly notify each applicable Lender of such notice and of each such Lender’s Pro Rata Share of the prepayment. Each such Lender may reject all of its Pro Rata Share of the prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such financial statements are actually deliveredLender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Subject to any requirements of any other Indebtedness, any Declined Proceeds may be retained by the Company. The Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.6, a certificate signed by a Responsible Officer of the Company setting forth in reasonable detail the calculation of the amount of such prepayment.
(df) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.6 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.12(b).
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Navios Maritime Partners L.P.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred Indebtedness permitted in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing(other than Term Loan Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.11(e); provided that prepayments pursuant to this Section 2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, the Asset Sale Percentage of such Net Cash Proceeds shall be applied within ten days 10 Business Days after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.11(e); provided provided, that, notwithstanding the foregoing, no such prepayment shall be required to the extent that the aggregate Net Cash Proceeds received from Asset Sales or Recovery Events in any fiscal year is less than $50,000,000 (it being understood that only amounts in excess of such thresholds shall be required to be applied to any prepayment); provided further that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.11(e); provided further that, notwithstanding the foregoing, such Net Cash Proceeds may be applied towards the prepayment or purchase of Pari Passu Secured Indebtedness to the extent the documentation governing such Indebtedness requires such a prepayment or purchase with Net Cash Proceeds from any Asset Sale or Recovery Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness (provided that, in the event that the Borrower or applicable Restricted Subsidiary makes an offer to the holders of such Pari Passu Secured Indebtedness to prepay or purchase such Pari Passu Secured Indebtedness in an amount permitted under this Section 2.11(b), to the extent that such offer is declined by holders of such Pari Passu Secured Indebtedness (the declined amount, the “Other Debt Declined Amount”), the Borrower shall be required to prepay Term Loans in an amount equal to such Other Debt Declined Amount as if the Other Debt Declined Amount were Net Cash Proceeds received on the final date by which such declining holders were required to give notice of their Other Debt Declined Amount).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011Excess Cash Flow Period, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(e) the excess of (x) the ECF Percentage of such Excess Cash Flow toward over (y) solely to the prepayment extent not funded with the proceeds of long-term Indebtedness or the proceeds of any issuance of Capital Stock, the aggregate amount of (1) all optional prepayments of Term Loans and made during such Excess Cash Flow Period pursuant to Section 2.10, (2) all optional prepayments of Pari Passu Secured Indebtedness made during such Excess Cash Flow Period, (3) all prepayments of ABL Loans during such Excess Cash Flow Period to the extent accompanied by a permanent reduction of the Revolving Commitments as set forth ABL Commitments, and (4) all Loan purchases made during such Excess Cash Flow Period pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be the amount of the Borrower’s cash payment in Section 2.11(drespect of such purchase). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days 10 Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year Excess Cash Flow Period with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) On or after the fifth anniversary of the Closing Date, the Borrower shall pay in cash all accrued interest and/or original issue discount (as determined for U.S. federal income tax purposes) to the extent necessary so that the Initial Term Loans will not be classified as “applicable high yield discount obligations” under Section 163(i) of the Code (or any successor provision). It is the intent of the Borrower that payments on the Initial Term Loans made pursuant to this Section 2.11(d) be made such that Section 163(e)(5) of the Code (or any successor provision) would not apply to the Initial Term Loans and the provisions of this Agreement related to the Initial Term Loans shall be applied consistently therewith. The computations and determinations made by the Borrower for purposes of this Section 2.11(d) shall be binding upon each Lender.
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments). The application of any prepayment pursuant to this Section 2.11 shall be made, made first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) Notwithstanding anything With respect to any prepayment pursuant to this Section 2.11 of Initial Term Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the contrary in Section 2.11(d) or 2.17, with respect to date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of any mandatory such prepayment described in Section 2.11 that is allocated required to Tranche B Term Loans be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such amount, prepayment (the “Tranche B Prepayment Declined Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount ) by providing written notice to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 no later than two Business Days after the date of such Lender’s receipt of notice from the Prepayment Option NoticeAdministrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such Lender’s Declined Amount may be retained by the Borrower.
(g) Notwithstanding any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the relevant Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such Lender by affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, 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 five Business Days after such repatriation) applied (in the case of Excess Cash Flow, net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds or Excess Cash Flow to such Lender’s Tranche B Term Loans. On reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Mandatory Prepayment DateBorrower rather than such Foreign Subsidiary, less (iin the case of Excess Cash Flow) the Borrower shall pay to amount of additional taxes that would have been payable or reserved against if such Excess Cash Flow had been repatriated (or, if less, the relevant Tranche B Term Lenders the aggregate amount necessary to prepay Net Cash Proceeds or Excess Cash Flow that portion of the outstanding relevant Term Loans as described above in respect of which would be calculated if received by such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (iiForeign Subsidiary), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Rent a Center Inc De), Term Loan Credit Agreement (Rent a Center Inc De)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock (other than a Permitted Issuance) or Debt Indebtedness shall be issued or incurred Incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Holdings, the Borrower or any of its subsidiaries Subsidiaries (excluding any Incurrence of Indebtedness in connection accordance with a Permitted Receivables Financingsubsection 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and to the extent of any excess to the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(dsubsection 2.9(d), provided that if, at the time of such issuance or Incurrence, the Consolidated Leverage Ratio as of the last day of the most recent Test Period is (i) less than 5.00 to 1.00 and greater than or equal to 4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or Incurrence first, toward the prepayment of the Term Loans, and second, to the reduction of the Revolving Credit Commitments as set forth in subsection 2.9(d) and (ii) less than 4.00 to 1.00, no such prepayment or reduction shall be required in respect of such issuance or Incurrence.
(b) If on any date Holdings, the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied applied, within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed such date, toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(dsubsection 2.9(d); , provided that, notwithstanding the foregoing, that if a Reinvestment Notice shall be delivered in respect thereof (i) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenderssubsection 2.9(d) and (ii) the date if such financial statements are actually delivered.
(dNet Cash Proceeds relate to an Asset Sale pursuant to subsection 7.5(h) Amounts or an Asset Swap Transaction pursuant to be applied subsection 7.5(i) and a Reinvestment Notice has been delivered in connection with prepayments made pursuant to this Section 2.11 shall be appliedtherewith, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of pending such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Reinvestment Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice Net Cash Proceeds shall be deemed an acceptance of the prepayment referenced therein(A) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment repayment of the Tranche A Term Loans; provided that if after the application of amounts Revolving Credit Loans pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.subsection 2.8
Appears in 2 contracts
Sources: Credit Agreement (WTNH Broadcasting Inc), Credit Agreement (STC Broadcasting Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued 7.2, other than Indebtedness incurred in compliance accordance with Section 7paragraph (f) or thereof but excluding any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries purchase money Indebtedness incurred in connection with a Permitted Receivables Financingan acquisition permitted by Section 7.8(g)), an amount equal to 10050% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been delivered in respect thereof, 50% of such Net Cash Proceeds shall be applied within ten days after the five (5) Business Days of such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the Borrower, (ii) if such Net Cash Proceeds are not reinvested within five (5) Business Days of the date such Net Cash Proceeds are received, the Borrower shall apply such Net Cash Proceeds within five (5) Business Days of the date of receipt to the repayment of the Revolving Credit Loans (without any corresponding reduction of the Revolving Commitments), (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of and to the extent that the Borrower commencing with has applied Net Cash Proceeds to the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flowrepayment of Revolving Loans pursuant to clause (ii) above, the Borrower shall, on shall reborrow Revolving Loans in the relevant Excess Cash Flow Application Date, amount of the Reinvestment Prepayment Amount and apply the ECF Percentage of such Excess Cash Flow toward proceeds to the prepayment of the Term Loans and the reduction of the Revolving Commitments Loans as set forth in Section 2.11(d).
(c) The Borrower shall repay all outstanding Term Loans on the Term Loan Maturity Date. Each such prepayment and commitment reduction The Borrower shall be made repay all outstanding Revolving Loans on a date (an “Excess Cash Flow Application the Revolving Termination Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 (other than the Net Cash Proceeds from the incurrence of Indebtedness secured by a Lien on a Borrowing Base Property) shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and), second, to reduce the prepayment of Swingline Loans and then Revolving Loans (without a permanent any corresponding reduction of the Revolving Commitments), third, to the prepayment of Revolving Loans (without any corresponding reduction of the Revolving Commitments), and fourth, to cash collateralize Letters of Credit by depositing an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Revolving Lenders on terms and conditions satisfactory to the Administrative Agent. Amounts to be applied in connection with prepayments made pursuant to Section 2.11(a) from the Net Cash Proceeds from the incurrence of Indebtedness secured by a Lien on a Borrowing Base Property shall be applied, first, to the prepayment of Swingline Loans (without any corresponding reduction of the Revolving Commitments), second, to the prepayment of Revolving Loans (without any corresponding reduction of the Revolving Commitments), third to the prepayment of the Term Loans in accordance with Section 2.17(b), , and fourth, to cash collateralize Letters of Credit by depositing an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Revolving Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc), Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than (i) Excluded Indebtedness, (ii) any Debt incurred in accordance with Section 7.2 Capital Stock issued to any Group Member, (iii) any Capital Stock issued to any member of management or directors, officers or employees of any Group Member or (iv) any Capital Stock issued in compliance with Section 7contemplation of a Permitted Acquisition) or any initial cash proceeds that are related capital contribution is made to any Group Member (other than a financing of a fixed principal amount of Receivables Assets or capital contribution by any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingGroup Member), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance issuance, incurrence or incurrence contribution toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d); provided, however, that the amount of Net Cash Proceeds payable pursuant to this clause (a) from the issuance of Capital Stock by any Group Member shall be reduced to 50% if the Borrower’s Consolidated Leverage Ratio is less than 1.50:1.00.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $15,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112007, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d4.2(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivereddelivered to the Lenders.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 4.2 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Senior Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Senior Administrative Agent. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) . Notwithstanding anything herein to the contrary contrary, no Loans shall be prepaid hereunder until all Interim Loans have been paid in Section 2.11(d) or 2.17, full and all commitments with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders thereto have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisbeen terminated.
Appears in 2 contracts
Sources: Senior Credit Agreement (Websense Inc), Senior Credit Agreement (Websense Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingSame as Existing Credit Agreement, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of except: (i) the date on which excess cash flow prepayment provision in the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 Existing Credit Agreement shall be appliedreplaced by a new provision providing that, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment each of (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance x) the second half of the prepayment referenced therein) fiscal year 2016 and (iiy) fiscal year 2017, 50% of Excess Cash Flow (to be defined in a manner consistent with the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted Existing Credit Agreement with such modifications mutually agreed by the relevant Lenders, and parties) for such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount period shall be used to prepay the Tranche B Term Loans (the “Excess Cash Flow Sweep”); provided that any voluntary prepayment of Term Loans made during each such period shall be credited against excess cash flow prepayment obligations for such period on a dollar-for-dollar basis; (ii) the Extraordinary Receipts prepayment provisions in the Existing Credit Agreement shall be modified to (i) include all proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings with respect to or otherwise connected to the Deer Run mine (“Hillsboro Business Interruption Insurance Proceeds”) in the definition of “Extraordinary Receipts”, (ii) permit Extraordinary Receipts constituting insurance proceeds (other than Hillsboro Business Interruption Insurance Proceeds) to be used to repay any purchase money, capital lease or other project-level Indebtedness permitted under the Credit Agreement (including the Longwall Financing Arrangements) that is secured by Liens on such insurance proceeds (or assets and property that gave rise to the insurance proceeds) to the extent required under the documents governing such Indebtedness as in effect as of the later to occur of (x) the Effective Date and (y) the time of the event giving rise to such insurance proceeds, and (iii) provide that the Hillsboro Business Interruption Insurance Proceeds are not subject to reinvestment rights or the 100% prepayment requirement, but 50% thereof shall be used to prepay the Term Loans and the remaining 50% may be retained by the Borrower. (iii) the aggregate commitments under the Revolving Facility shall be reduced on a pro rata basisbasis on December 31, 2016 to $450 million, without premium or penalty; and (iv) Section 2.05(c)(i)(A) of the Existing Credit Agreement shall be revised to include a reference to Section 7.05(r).
Appears in 2 contracts
Sources: Transaction Support Agreement (Foresight Energy LP), Transaction Support Agreement (Foresight Energy LP)
Mandatory Prepayments and Commitment Reductions. (a) [Reserved].
(b) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)2.11(g) not later than the Business Day following receipt of such Net Cash Proceeds.
(bc) If on during any date any Group Member fiscal year of Holdings one or more Loan Parties shall receive Net Cash Proceeds from any Asset Sale or Sales and Recovery Event thenEvents aggregating in excess of $100,000, to the extent then unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds in excess of said $100,000 amount shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)2.11(g) not later than the Business Day following receipt of such Net Cash Proceeds; provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward as set forth in Section 2.11(g).
(d) Within 120 days after the end of each fiscal year of Trean commencing with the fiscal year ending December 31, 2020, the Borrower shall prepay the Obligations in accordance with Section 2.11(g) in an aggregate amount equal to the following percentages of Excess Cash Flow for such preceding fiscal year as applicable: 50% with respect to each fiscal year; provided, however, that any mandatory prepayment pursuant to this Section 2.11(d) may be waived with the written consent of all Lenders. Any voluntary prepayments made in respect of the Term Loans and the Revolving Loans (but only to the extent that the Revolving Commitments are permanently reduced by the amount of such payments in accordance with Section 2.9 hereof) during the applicable period shall be treated as a credit against any Excess Cash Flow mandatory prepayment that would otherwise be required to be made pursuant to this Section 2.11(d) with respect to such period. Any prepayment pursuant to this Section 2.11(d) shall be applied as set forth in Section 2.11(d)2.11(g) below.
(ce) If, for any Fiscal Year Not later than the first Business Day following the date of receipt by the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flowof any proceeds of any Specified Equity Contribution pursuant to Section 7.1(c), the Borrower shall, on shall prepay the relevant Excess Cash Flow Application Date, apply the ECF Percentage outstanding Obligations in an aggregate amount equal to 100% of such Excess Cash Flow toward the prepayment proceeds. The proceeds of the Term Loans and the reduction of the Revolving Commitments any such Specified Equity Contribution shall be applied as set forth in Section 2.11(d2.11(g). Each .
(f) If for any reason the Revolving Extensions of Credit at any time exceed the aggregate Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans or any Swingline Loans then outstanding in an aggregate amount equal to such prepayment and commitment reduction excess.
(g) All amounts required to be prepaid pursuant to this Section 2.11 shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of applied as follows:
(i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered all amounts prepaid pursuant to the Administrative Agent foregoing subsections (for distribution b), (c) and e, first to the Agents Term Loans, in inverse order of maturity (including the final payment due on the Term Loan Maturity Date), then (after the Term Loans have been paid in full) to the Swingline Loans, and then (after the LendersSwingline Loans have been paid in full) and to the Revolving Loans (but without a corresponding reduction in the aggregate Revolving Commitments then in effect);
(ii) with respect to all amounts prepaid pursuant to the foregoing subsection (d), first to the Term Loans, pro rata across remaining amortization payments (including the final payment due on the Term Loan Maturity Date), then (after the Term Loans have been paid in full) to the Swingline Loans, and then (after the Swingline Loans have been paid in full) to the Revolving Loans (but without a corresponding reduction in the aggregate Revolving Commitments then in effect); and
(iii) with respect to all amounts prepaid pursuant to the foregoing subsection (f), first to the Swingline Loans, and then (after the Swingline Loans have been paid in full) to the Revolving Loans. Within the parameters of the applications set forth above, prepayments shall be applied first to ABR Loans and then to Eurodollar Loans. All prepayments under this Section 2.11 shall be subject to Section 2.20, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment. Notwithstanding anything in this Section 2.11 to the contrary, amounts received from any Loan Party that is not a Qualified ECP Guarantor shall not be applied to any Excluded Swap Obligation of such financial statements are actually deliveredLoan Party.
(dh) Amounts to be applied in connection with prepayments Each prepayment made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to a certificate of a Responsible Officer in reasonable detail setting forth the date calculation of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree with the Borrower not to require such a prepayment of the Term Loans and the reduction of the Revolving Credit Commitments, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued (other than (i) the issuance of Capital Stock pursuant to the Warrant (as defined in the Acquisition Agreement as in effect on the date hereof) and (ii) the issuance by the Borrower of Capital Stock to outside directors, members of management or incurred employees of the Borrower or any Subsidiary in the ordinary course of business the Net Cash Proceeds of which shall not exceed $5,000,000 in any fiscal year), or Indebtedness incurred, by the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued (other than Section 7.2(g) in compliance with Section 7respect of the initial issuance of the Senior Subordinated Notes)) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree with the Borrower not to require such a prepayment of the Term Loans and the reduction of the Revolving Credit Commitments, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirements pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree with the Borrower not to require such a prepayment of the Term Loans and the reduction of the Revolving Credit Commitments, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111998, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 75% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.10(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), 6.1(a) for the Fiscal Year fiscal year with respect to which such prepayment is made, made are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.10 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.10 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.10 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Conmed Corp)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued or by any Loan Party in a public offering, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.10(e); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(e).
(b) Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by any Group Member Loan Party (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of the receipt of such issuance or incurrence Net Cash Proceeds toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.10(e).
(bc) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.10(e); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment DateDate the Term Loans shall be prepaid, and/or the Revolving Commitments shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Event, as set forth in Section 2.11(d2.10(e).
(cd) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Excess Cash Flow Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.10(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 Sections 2.10(b) and (c) above shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b2.16(b) until paid in full and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.10 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.10 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Empi Inc)
Mandatory Prepayments and Commitment Reductions. (a) If [Intentionally Omitted.]
(b) Unless the Required Prepayment Lenders shall otherwise agree with the consent of the Borrowers, subject to Section 2.18(d), if any Redeemable Preferred Interests or Funded Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing either of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Borrowers or any of its subsidiaries in connection with a Permitted Receivables Financingtheir respective Subsidiaries (excluding Non-Recourse Debt of Unrestricted Subsidiaries), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(e); provided, however, that, notwithstanding the foregoing, the Net Cash Proceeds of any Funded Debt shall not be required to be so applied to the extent incurred in accordance with the requirements of any provision of Section 7.2, in each case, as such provisions are in effect on the Restatement Effective Date, or amended or modified with the consent of the Required Prepayment Lenders. For the avoidance of doubt, Funded Debt incurred in accordance with the requirements of Section 7.2(g) as in effect on the Restatement Effective Date shall not be required to be applied towards any prepayments, notwithstanding the amendment of this Agreement as contemplated by such Section 7.2(g).
(bc) If Unless the Required Prepayment Lenders shall otherwise agree with the consent of the Borrowers, subject to Section 2.18(d), if on any date either of the Borrowers or any Group Member of their respective Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been is permitted to be delivered in respect thereofthereof and is so delivered within 10 days from the date that such Net Cash Proceeds are received, such Net Cash Proceeds shall be applied within ten 10 days after from the date that all post-closing adjustments associated therewith have been completed such Net Cash Proceeds are received toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(e); provided provided, that if a Default or Event of Default has occurred and is continuing at the time such Net Cash Proceeds are received by either of the Borrowers or any of their respective Restricted Subsidiaries, then such Net Cash Proceeds shall be applied toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Credit Commitments on the date so received; provided, further, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to one or more Reinvestment Notices shall not exceed (A) with respect to the Net Cash Proceeds of sale-leaseback transactions, $100,000,000 in the aggregate during the term of the facilities and (B) with respect to the Net Cash Proceeds of any other Asset Sale or Recovery Event, $100,000,000 in any fiscal year of the Borrowers and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Tranche D Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.12(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts [Intentionally Omitted.]
(e) Subject to Section 2.18, amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.12 shall be applied, first, to the prepayment of the Tranche B Term Loans in accordance with Section 2.17(b) andLoans, second, to reduce the Swingline prepayment of the Tranche C Term Loans and then the Tranche D Term Loans pro rata among the Tranche C Term Loan Facility and the Tranche D Term Loan Facility based upon the remaining unpaid aggregate principal amounts thereof, third, to repay any amounts outstanding under the Revolving Loans Credit Commitment (but without resulting in a permanent reduction of the Revolving CommitmentsCredit Commitment) and, fourth, to such Borrower or such other Person as shall be lawfully entitled thereto. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account established with the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and the Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such cash collateral account are subject to any right or claim of any Person other than the Administrative Agent and the Secured Parties or that the total amount of such funds is less than the amount of such excess, the Borrowers shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in such cash collateral account, an amount equal to the excess of (a) the amount of such excess over (b) the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be free and clear of any such right and claim. The application of any prepayment pursuant to Section 2.11 and this Section 2.11 2.12 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and this Section 2.11 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If on any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by date the US Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed three Business Days toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.06(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and as set forth in Section 4.06(d).
(b) If on any date the Revolving US Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Capital Market Transactions, then an amount equal to 75% of the Net Cash Proceeds from such Capital Market Transaction (to the extent such Net Cash Proceeds, together with the Net Cash Proceeds from prior Capital Market Transactions after the Original Closing Date are in excess of $200,000,000) shall be applied within five Business Days of such issuance or incurrence to the prepayment of the Term Loans as set forth in Section 2.11(d4.06(d); provided, that, notwithstanding the foregoing, any Net Cash Proceeds from any Capital Market Transactions of less than $200,000,000 shall be applied to prepay any amounts outstanding under the Revolving Credit Facility.
(c) If, for any Fiscal Year of On the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Effective Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and if after giving effect to the reduction provided in Section 4.03(a)(i), (x) the aggregate Revolving Credit Exposures of all the Lenders exceeds the aggregate US Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date or (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (iy) the date on which aggregate principal amount of outstanding Mexican Revolving Loans exceeds $100,000,000, then the financial statements of US Borrower or the Borrower referred to Mexican Borrower, as applicable, shall repay the applicable Revolving Loans in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required amounts necessary to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredin compliance with this Agreement.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 4.06(a) or (b) shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments4.13(a)(iii). The application of any prepayment pursuant to this Section 2.11 4.06 shall be made, first, to ABR Loans and, second, to Eurodollar LoansLoans in a manner that minimizes amounts due under Section 4.11. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 4.06 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(c); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans reduction of the Commitments as set forth in Section 2.11(d2.12(c).
(cb) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year fiscal year ending on or after December 31, 20112003, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.12(c). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the latest date on which the financial statements of the Borrower Company referred to in Section 6.1(b5.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(dc) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to reduce permanently the unused portion (if any) of Term Loan Commitments, second, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, secondfinally, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Credit Loans that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If (i) any Redeemable Preferred Interests or Debt common stock shall be issued or incurred by any Group Member the Borrower and (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7ii) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount (A) the Consolidated Leverage Ratio at such time and after giving effect thereto is equal to 100% or less than 3.25 to 1.00 and (B) no Event of Default under this Agreement, Senior Loan Default or Senior Loan Event of Default shall have occurred and be continuing or would result therefrom, the Net Cash Proceeds thereof shall be applied on the date of receipt of such issuance or incurrence Net Cash Proceeds toward the prepayment of the Term Loans with each such prepayment being accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that, if a Senior Loan Default exists at the time Net Cash Proceeds are received by the Borrower, but such Senior Loan Default is cured before it becomes an Event of Default under the First Lien Credit Agreement or the Second Lien Credit Agreement, as the case may be, such Senior Loan Default shall not operate to prohibit the application of such Net Cash Proceeds as contemplated by this Section 3.2(a) once such Senior Loan Default has been cured; provided, further, that such Net Cash Proceeds shall be deposited and maintained in a segregated account with the Revolving Loans as set forth in Section 2.11(d)Lenders during such grace period.
(b) If on At any date time after the payment in full of the First Lien Loans and Second Lien Loans and any Permitted Refinancing Indebtedness in respect thereof, any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event; then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) IfLoans, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be being accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (ai) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred With respect to the 364-Day Tranche Loans only, in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds the event that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries Subsidiaries receives following the Commitment Letter Date any Net Cash Proceeds arising from any Debt Issuance, Equity Issuance or Asset Sale, then (A) prior to the Closing Date, the 364-Day Tranche Commitments shall be automatically and permanently reduced in connection with a Permitted Receivables Financing, an amount equal to 100% of the such Net Cash Proceeds thereof shall be applied on the date of such issuance receipt by the Company or incurrence toward the prepayment such Subsidiary of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days (including with respect to a Debt Issuance or Equity Issuance into escrow), or (B) on or after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Closing Date, the Company shall prepay the 364-Day Tranche Loans in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 100% of such Excess Net Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no Proceeds not later than five days after Business Days following such receipt by the earlier Company or such Subsidiary of such Net Cash Proceeds (i) but not including the date on which the financial statements Net Cash Proceeds of the Borrower referred to in Section 6.1(ba Debt Issuance or Equity Issuance into escrow unless and until such proceeds are released from escrow). The Company shall promptly, for the Fiscal Year with respect to which such prepayment is madewithin three Business Days, are required to be delivered to notify the Administrative Agent (for distribution to upon the Agents receipt by the Company or such Subsidiary of any such Net Cash Proceeds and the Lenders) and (ii) the date Administrative Agent will promptly notify each Lender of its receipt of each such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made notice. All such amounts pursuant to this Section 2.11 2.11(b) shall be appliedapplied to prepay the 364-Day Tranche Loans on a pro rata basis amongst 364-Day Tranche Lenders (or, firstas between Lenders which are affiliated with each other, to as they may otherwise determine and notify the prepayment of the Term Loans in accordance with Section 2.17(bAdministrative Agent) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitmentssuch amounts prepaid may not be reborrowed. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and shall be made in the manner specified in Section 2.18(a). All Commitment Fees accrued until the effective date of any termination of the 364-Day Tranche Commitments shall be paid on the effective date of such prepayment on the amount prepaidtermination.
(eii) Notwithstanding anything any other provisions of this Section, to the contrary extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (“Foreign Subsidiary Disposition”) are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Company or any applicable Domestic Subsidiary or if the Company has determined in Section 2.11(d) good faith that repatriation of any such amount to the Company or 2.17, any applicable Domestic Subsidiary would have material adverse tax consequences to the Company or any of its Subsidiaries with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “portion of such Net Cash Proceeds so affected will not be required to be applied to reduce the 364-Day Tranche B Prepayment Amount”)Commitments or prepay the 364-Day Tranche Loans, as applicable, at the times provided in this Section but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Company or the applicable Domestic Subsidiary, or the Company believes in good faith that such material adverse tax consequence would result, and once such repatriation of any time when of such affected Net Cash Proceeds is permitted under the applicable local law or the Company determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reasonably estimated to be payable as a result thereof) to the reduction of the 364-Day Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to Commitments or the prepayment of the 364-Day Tranche B Term Loans, as applicable, pursuant to this Section (provided that no such reduction or prepayment pursuant to this Section shall be required in Section 2.11(d) abovethe case of any such Net Cash Proceeds the repatriation of which the Company believes in good faith would result in material adverse tax consequences, if on or before the date specified in Section 2.11 for on which such prepaymentNet Cash Proceeds so retained would otherwise have been required to be applied to such reductions or prepayments pursuant to this Section, give (x) the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by Company applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans reduction or prepayment as described above in respect of which if such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted Net Cash Proceeds had been received by the relevant LendersCompany rather than such Foreign Subsidiary, and less the amount of additional Taxes that would have been payable or reserved against if such amount shall Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds are applied to the prepayment repayment of the Tranche A Term Loans; provided that if after the application Indebtedness of amounts pursuant to clause (iia Foreign Subsidiary), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness for Borrowed Money shall be issued or incurred by the Company or any Group Member of its Restricted Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued subsection 6.1(a) through (d) as in compliance with Section 7) or any initial cash proceeds that are related to a financing effect on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthis Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(dsubsection 2.10(c), PROVIDED that the provisions of this subsection shall be inapplicable to Indebtedness for Borrowed Money issued or incurred subsequent to the Closing Date in an aggregate principal amount not in excess of $100,000,000 so long as, after giving effect to the issuance or incurrence thereof, the ratio of Total Debt then outstanding to Operating Cash Flow for the then most recently ended period of four consecutive fiscal quarters for which financial statements shall have been delivered to the Banks pursuant to subsection 5.1 is less than 4.5 to 1.0.
(b) If on any date the Company or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof within 30 days after such Asset Sale or Recovery Event, such Net Cash Proceeds shall be applied within ten days on the 30th day after the date that all post-closing adjustments associated therewith have been completed such Asset Sale or Recovery Event toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(dsubsection 2.10(c); provided PROVIDED, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(dsubsection 2.10(c). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(dc) Amounts to be applied in connection with prepayments Any payments of the Loans made pursuant to this Section 2.11 subsection shall be applied, first, applied FIRST to the prepayment of the Term Loans in accordance Loans, with Section 2.17(b) andsuch prepayment being applied to the installments of principal thereof ratably according to the then remaining amounts thereof, second, and SECOND to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 Credit Commitment (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided Revolving Credit Loans to the extent that if after the application of amounts pursuant to clause (iithen aggregate outstanding principal amount thereof exceeds the Revolving Credit Commitment as so reduced), any portion . Amounts prepaid on account of the Tranche B Prepayment Amount Term Loan Notes may not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisreborrowed.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless ----------------------------------------------- the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided that no such prepayment and reduction shall be -------- required pursuant to this Section 2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2 and (iv) up to $10,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by the Borrower after the Closing Date.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided provided, -------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111998, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash ----------- Flow Application Date”") no later than five days after the earlier of (i) the --------------------- date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to ----- the prepayment of the Term Loans in accordance with Section 2.17(b) and(pro rata among the Tranche A Term Loans, the --- ---- Tranche B Term Loans and the Acquisition Loans, based upon the outstanding principal amount thereof), second, to the reduction of any available Acquisition ------ Term Loan Commitments and, third, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit ----- Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if -------- the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The Subject to the immediately preceding sentence, the application of any prepayment pursuant to this Section 2.11 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which All unpaid amounts owing hereunder shall be in the form of Exhibit G, due and shall include an offer by the Borrower to prepay payable on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.October 27,
Appears in 1 contract
Sources: Credit Agreement (Details Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests On or Debt before November 30, 2000, Borrower shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to make a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the mandatory prepayment of the Term Loans and Obligations in an amount sufficient to reduce the Revolving Loans as set forth in Section 2.11(d)aggregate amount of the Obligations outstanding to not more than $17,000,000.
(b) If on any date any Group Member On or before April 30, 2001, Borrower shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent make a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the mandatory prepayment of the Term Loans and Obligations in an amount sufficient to reduce the Revolving Loans aggregate amount of the Obligations outstanding to not more than $9,000,000.
(c) On or before June 30, 2001, Borrower shall make a mandatory prepayment of the Obligations in an amount sufficient to reduce the aggregate amount of the Obligations outstanding to not more than $5,000,000.
(d) Immediately upon the consummation of any Permitted Disposition (other than an Ordinary Course Disposition), Borrower shall:
(i) repay the Permitted Overadvance Amount outstanding (if any) as set forth of the date of any such repayment in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Required Amount with respect applicable to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans such Permitted Disposition and the Revolving Loans as set forth in Section 2.11(d).amount so prepaid shall permanently reduce the Permitted Overadvance Amount on a dollar-for-dollar basis; and
(cii) If, for any Fiscal Year of if the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth Permitted Overadvance Amount outstanding (if any) has been repaid in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of full pursuant to clause (i) above or otherwise, repay Term Loan A in an amount equal to the date on which Required Amount applicable to such Permitted Disposition (or the financial statements balance remaining after the repayment of the Borrower referred Permitted Overadvance Amount outstanding pursuant to in Section 6.1(b)clause (i) above, for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents as applicable) and the Lendersamount so prepaid shall permanently reduce Term Loan A; and
(iii) if the Permitted Overadvance Amount outstanding (if any) and Term Loan A have been repaid or prepaid in full pursuant to clauses (i) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on prepay the date specified Advances made by Foothill to Borrower under Section 2.1 in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Required Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Permitted Disposition (or the balance remaining after the prepayment of the Permitted Overadvance Amount outstanding and Term Loans. On the Mandatory Prepayment Date, Loan A pursuant to clauses (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lendersabove, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (iias applicable), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.,
Appears in 1 contract
Sources: Loan and Security Agreement (Malibu Entertainment Worldwide Inc)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with (other than Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2(f))), an amount equal to (i) 100% %, in the case of Indebtedness, and (ii) 50%, in the case of Capital Stock, of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(e).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event in excess of $300,000 then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9 (e); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(e).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31in March, 20111999, there shall be Excess Cash FlowFlow in excess of $300,000 and the Consolidated Leverage Ratio at the end of such fiscal year is greater than 3.0 to 1.0, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.9(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any of its Subsidiaries is entitled to receive a payment in excess of $300,000 under the Acquisition Agreement, an amount equal to the excess of such payment over $300,000 shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e).
(e) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.9 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C and L/G Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.9 (except in the case of Revolving Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. Prepayments of Term Loans pursuant to Section 2.9(c) shall be applied (x) pro rata (based on outstanding principal amount) to the Tranche A Term Loans and the Tranche B Term Loans and (y) to the respective installments of principal thereof in inverse order of maturity. So long as the Consolidated Leverage Ratio exceeds 3.0 to 1.0, prepayments of Term Loans pursuant to Sections 2.9(a), (b) and (d) shall be applied (x) pro rata (based on outstanding principal amount) to the Tranche A Term Loans and Tranche B Term Loans and (y) to the respective installments of principal thereof in inverse order of maturity; otherwise, such prepayments shall be applied (x) pro rata (based on outstanding principal amount) to the Tranche A Term Loans and the Tranche B Term Loans and (y) to the respective installments of principal thereof ratably in accordance with the then outstanding amounts thereof.
(ef) Notwithstanding anything to the contrary in this Section 2.11(d) or 2.172.9, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline the portion of any mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in this Section 2.11 2.9 that is allocated to Tranche B Term Loans (such amount, the “"Tranche B Prepayment Amount”)", at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(d) abovethis paragraph (f), on the date specified in this Section 2.11 2.9 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (a notice (each, a “"Prepayment Option Notice”") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit GD, and shall include an offer by the Borrower to prepay on the date (each a “"Mandatory Prepayment Date”") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s 's Prepayment Option Notice as being applicable to such Lender’s Tranche B Term LoansNotice. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Tranche B Term Loans as described above in respect of which such Lenders have accepted prepayment as described above (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of such Lenders, the prepayment referenced therein) and "Accepting Lenders"), (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Accepting Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after .
(g) If, at any time for any reason, the application Revolving Extensions of amounts pursuant Credit exceed an amount equal to clause (ii)the Revolving Commitments on such date, any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to Borrower shall: first prepay the Tranche B Term Revolving Loans then outstanding; second pay any Reimbursement Obligations then outstanding and, last, cash collateralize any outstanding L/C Obligation in an amount equal to such excess.
(h) If, at any time for any reason, the L/C and L/G Obligations exceed an amount equal to the L/C and L/G Commitment on a pro rata basissuch date, the Borrower shall: first pay any Reimbursement Obligations then outstanding and, then, cash collateralize any outstanding L/C and L/G Obligations in an amount equal to such excess.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member Loan Party or its Restricted Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with excluding Section 77.2(ii)(a)) or any initial cash proceeds that are related to a financing then on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets such incurrence, the Term Loans shall be received prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)incurrence.
(b) If on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, within five (5) Business Days of the date of receipt by the Borrower or such Restricted Subsidiary of such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of Proceeds, the Term Loans shall be prepaid, and the Revolving Loans as set forth shall be reduced (without a permanent reduction in Section 2.11(d)the Revolving Credit Commitments) by an amount equal to the amount of such Net Cash Proceeds; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date the Term Loans shall be prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward Event. The provisions of this Section do not constitute a consent to the prepayment consummation of the Term Loans and the Revolving Loans as set forth in any Disposition prohibited by Section 2.11(d)7.5.
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112007, there shall be Excess Cash Flow, the Borrower shallthen, on the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by an amount not less than $0 equal to (i) the ECF Percentage of such Excess Cash Flow toward minus (ii) the prepayment amount of all optional prepayments of the Term Loans during the year for which Excess Cash Flow was calculated, to the extent such prepayment was financed with internally generated cash and not with the reduction proceeds of the Revolving Commitments as set forth in Section 2.11(d)Indebtedness or Capital Stock. Each such prepayment and commitment reduction and/or repayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(di) The Borrower shall prepay the outstanding principal amount of the Dollar Revolving Credit Loans on any date on which the aggregate amount of such Loans, together with the aggregate amount of Dollar L/C Obligations and Dollar Swing Line Loans exceeds the Total Dollar Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding Dollar Revolving Credit Loans, the aggregate amount of Dollar L/C Obligations plus the aggregate amount of Swing Line Loans exceeds the Total Dollar Revolving Credit Commitments then in effect, the Borrower shall prepay all outstanding Dollar Swing Line Loans, then cash collateralize Dollar L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the aggregate amount of such Dollar L/C Obligations and the Total Dollar Revolving Credit Commitments then in effect. The Administrative Agent shall establish in its name for the benefit of the applicable Revolving Credit Lenders a cash collateral account (the “Collateral Account”) into which it shall deposit such cash (or such cash described in clause (ii) below) to hold as collateral security for the Dollar L/C Obligations or Multicurrency L/C Obligations, as applicable.
(ii) The Borrower and each Foreign Borrower shall prepay the outstanding principal amount of the Multicurrency Revolving Credit Loans on any date on which the aggregate Effective Amount of such Loans, together with the aggregate Effective Amount of Multicurrency L/C Obligations and Euro Swing Line Loans exceeds the Total Multicurrency Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding Multicurrency Revolving Credit Loans, the aggregate Effective Amount of Multicurrency L/C Obligations plus the aggregate amount of Euro Swing Line Loans exceeds the Total Multicurrency Revolving Credit Commitments then in effect, the Borrower and each Foreign Borrower shall prepay all outstanding Euro Swing Line Loans, then shall cash collateralize Multicurrency L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the Effective Amount of such Multicurrency L/C Obligations and the Total Multicurrency Revolving Credit Commitments then in effect.
(iii) The German Borrower shall prepay the outstanding principal amount of the German Revolving Credit Loans on any date on which the aggregate amount of such Loans (after giving effect to any borrowing of Loans and prepayments or repayments of Loans occurring on such date), together with the aggregate amount of German L/C Obligations (after giving effect to any issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the German L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date) and amount of German Swing Line Loans (after giving effect to any borrowing of Loans and prepayments or repayments of Loans occurring on such date) exceeds the aggregate German Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding German Revolving Credit Loans, the aggregate amount of German L/C Obligations (after giving effect to any issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the German L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date) plus the aggregate amount of German Swing Line Loans (after giving effect to any borrowing of Loans and prepayments or repayments of Loans occurring on such date) exceeds the aggregate German Revolving Credit Commitments then in effect, the German Borrower shall prepay all outstanding German Swing Line Loans, then cash collateralize German L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the amount of such German L/C Obligations (after giving effect to any issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the German L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date) and the aggregate German Revolving Credit Commitments then in effect. The Administrative Agent shall establish in its name for the benefit of the applicable German Revolving Credit Lenders a cash collateral account into which it shall deposit such cash to hold as collateral security for the German L/C Obligations.
(e) Notwithstanding the foregoing, mandatory prepayments of Revolving Credit Loans that would otherwise be required pursuant to Section 2.12 solely as a result of fluctuations in Exchange Rates from time to time shall only be required to be made pursuant to Section 2.12 on the last Business Day of each month on the basis of the Exchange Rate in effect on such Business Day.
(f) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.12 (other than pursuant to clause (d) and (e) above) shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline repay Revolving Credit Loans and then Revolving Loans (without a any permanent reduction of the in Revolving Credit Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid).
(eg) Notwithstanding anything In the event of a Funding Default or a Lender Insolvency Default, and during the continuance of such default period, the Borrower or any Foreign Borrower (as applicable) shall enter into arrangements to eliminate or compensate for the contrary in Section 2.11(d) risk of any Swing Line Lender or 2.17, Issuing Lender with respect to the amount participation of any mandatory prepayment described Defaulting Lender in Section 2.11 that is allocated to Tranche B Term any outstanding Swing Line Loans (or any Letters of Credit, including cash collateralizing such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Defaulting Lender’s Prepayment Option Notice Dollar Revolving Credit Percentage, Multicurrency Revolving Credit Percentage or German Revolving Credit Percentage (as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (iapplicable) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Swing Line Loans or L/C Obligations, as described above in respect applicable or otherwise eliminating or compensating the applicable Swing Line Lender or Issuing Lender for its risk by another method acceptable to the Borrower and such Swing Line Lender or Issuing Lender; provided that cash collateralizing 100% of which such Lenders have accepted prepayment Defaulting Lender’s Dollar Revolving Credit Percentage, Multicurrency Revolving Credit Percentage or German Revolving Credit Percentage (it being understood that a failure to respond to a Prepayment Option Notice as applicable) of the outstanding Swing Line Loans or L/C Obligations, as applicable, shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay acceptable to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisSwing Line Lender or Issuing Bank.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued issued, or incurred Indebtedness incurred, by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued as in compliance with Section 7) or any initial cash proceeds that are related to a financing effect on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthis Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied then on the date of such issuance or incurrence toward the prepayment of incurrence, the Term Loans and shall be prepaid, and/or the Revolving Loans Credit Commitments shall be reduced, by an amount equal to the amount of the Net Cash Proceeds, other than any Excluded Proceeds, of such issuance or incurrence, as set forth in Section 2.11(d2.12(d). The provisions of this Section do not constitute a consent to the issuance of any equity securities by any entity whose equity securities are pledged pursuant to the Guarantee and Collateral Agreement or the Canadian Guarantee and Collateral Agreement, or a consent to the incurrence of any Indebtedness by CERI, the Borrower or any of its Subsidiaries.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale Sale, Purchase Price Refund or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, on the date of receipt by CERI, the Borrower of such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of Proceeds, the Term Loans and shall be prepaid, and/or the Revolving Loans Credit Commitments shall be reduced, by an amount equal to the amount of such Net Cash Proceeds, as set forth in Section 2.11(d2.12(d); provided PROVIDED, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to one or more Reinvestment Notices shall not exceed $7,500,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment DateDate the Term Loans shall be prepaid, and/or the Revolving Credit Commitments shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Event, as set forth in Section 2.11(d2.12(d). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, for if the Borrower determines that any Fiscal Year of the Borrower commencing with Remaining Allied Assets set forth on Annex I to the Fiscal Year ending December Escrow Agreement will not be acquired on or prior to January 31, 20112004 or if any such Remaining Allied Assets are not acquired on or prior to January 31, there shall be Excess Cash Flow2004, the Borrower shallthen on such date of determination, on the relevant Excess Cash Flow Application Dateor February 1, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of 2004, as applicable, the Term Loans and the reduction of shall be prepaid and/or the Revolving Credit Commitments as set forth in Section 2.11(d). Each shall be reduced, by an amount equal to the purchase price allocated to such Remaining Allied Assets on Annex I to the Escrow Agreement; it being understood that such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after from the earlier proceeds of (i) amounts entitled to be released pursuant to the date on which the financial statements terms of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredEscrow Agreement.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.12 shall be applied, firstFIRST, to the prepayment of the Term Loans in accordance with Section 2.17(b) andLoans, secondSECOND, to reduce permanently the Swingline Loans Revolving Credit Commitments and, THIRD, to reduce permanently any unfunded, unexpired and then Revolving Loans without a permanent unterminated Tranche B Term Loan Commitments. Any such reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) Credit Commitments shall be accompanied by accrued interest prepayment of the Revolving Credit Loans and/or Swing Line Loans to the date extent, if any, that the Total Revolving Extensions of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to Credit exceed the amount of any mandatory prepayment described in Section 2.11 the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is allocated to Tranche B Term Loans less than the amount of such excess (such amount, the “Tranche B Prepayment Amount”because L/C Obligations constitute a portion thereof), at any time when Tranche A Term Loans remain outstanding, the Borrower willshall, in lieu of applying such amount to the prepayment extent of Tranche B Term Loansthe balance of such excess, as provided replace outstanding Letters of Credit and/or deposit an amount in Section 2.11(d) above, on the date specified cash in Section 2.11 for such prepayment, give a cash collateral account established with the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisAgent.
Appears in 1 contract
Sources: Credit Agreement (Capital Environmental Resource Inc)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower Holdings or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided that no such prepayment and reduction shall be required pursuant to this Section 2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2, (iv) any Net Cash Proceeds from the issuance of Capital Stock by Holdings or the Incurrence of Indebtedness by Holdings or New Intermediate Holdco which are used to finance the AHYDO Payment and (v) up to $20,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by Holdings after the Closing Date.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided ~ that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $4,000,000 in any fiscal year of Details and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year of the Borrower commencing with period beginning on the Fiscal Year Closing Date and ending on December 31, 20111999 and for each fiscal year of Details thereafter, there shall be Excess Cash Flow, the Borrower Borrowers shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower Details referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, first to the prepayment of the Term Loans in accordance with Section 2.17(b(pro rata among the Tranche A Term Loans and the Tranche B Term Loans, based upon the outstanding principal amount thereof) and, second, ~ to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The Subject to the immediately preceding sentence, the application of any prepayment pursuant to this Section 2.11 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which All unpaid amounts owing hereunder shall be in the form of Exhibit Gdue and payable on April 22, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis2005.
Appears in 1 contract
Sources: Credit Agreement (Ddi Corp)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, (i) if any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member Indebtedness (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued 7.2) shall be incurred by any US Loan Party an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such Net Cash Proceeds toward the prepayment of the US Term Loans as set forth in compliance Section 2.12(e) and (ii) if any Indebtedness (excluding Indebtedness incurred in accordance with Section 77.2) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received incurred by the CDN Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingCDN Subsidiary Guarantor, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such issuance or incurrence Net Cash Proceeds toward the prepayment of the CDN Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(e).
(b) If Unless the Required Lenders shall otherwise agree, (i) if on any date any Group Member US Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the US Term Loans and the reduction of the US Revolving Loans Commitments as set forth in Section 2.11(d2.12(e) and (ii) if on any date the CDN Borrower or any CDN Subsidiary Guarantor shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event (a "CDN Reinvestment Event") then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the CDN Term Loans and the reduction of the CDN Revolving Commitments as set forth in Section 2.12(e); provided provided, that, notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the US Term Loans shall be prepaid and/or the US Revolving Commitments shall be reduced (or, with respect to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid and/or the CDN Revolving Commitments shall be reduced) as set forth in Section 2.12(e) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (y) on the date (the "Trigger Date") that is six months after any such Reinvestment Prepayment Date, the US Term Loans shall be prepaid and/or the US Revolving Commitments shall be reduced (or, with respect to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid and/or the CDN Revolving Commitments shall be reduced) as set forth in Section 2.12(e) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Lenders shall otherwise agree, if on any date Holdings or any of its Subsidiaries shall receive for its own account proceeds from any tax refund with respect to any period ending on or prior to the first anniversary of the Closing Date to the extent resulting from the redemption of stock options on the Closing Date, an amount equal to (i) the amount of such proceeds minus (ii) the amount of cash on hand of the US Borrower on the Closing Date after giving effect to the Transaction, shall be applied on the date of such receipt toward the prepayment of the Revolving Loans or the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(e).
(cd) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the US Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112006, there shall be Excess Cash Flow, the US Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such fiscal year, in each case other than to the extent any such prepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the US Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.12(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five ten days after the earlier of (i) the date on which the financial statements of the US Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this paragraphs (a) and (d) above shall be applied to the prepayment of the US Term Loans (or the CDN Term Loans, as applicable) in accordance with Section 2.11 2.18(b) until paid in full. Amounts to be applied in connection with prepayments and Commitment reductions pursuant to paragraph (b) above shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B US Term Loans (such amount, or the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B CDN Term Loans, as provided applicable) in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.accordance with
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than any Debt Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related 7.2), concurrently with, and as a condition to a financing closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in clause (g) of this Section 2.11(d).
2.11. Subject to clause (bd) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenof this Section 2.11, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) Ifif, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to the excess of (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined by the actual cash purchase price paid by such Permitted Auction Purchaser for such Purchase and not the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans made by the Borrower (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments ) and (3) voluntary prepayments and repurchases (to the extent of the actual cash purchase price paid for such loan buyback and not the par value) of Indebtedness (other than the Obligations) that are First Lien Obligations, in each case during such Excess Cash Flow Period or following such Excess Cash Flow Period and prior to such Excess Cash Flow Application Date shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in clause (g) of this Section 2.11(d)2.11; provided that no such prepayment shall be required to be made if the payment would be an amount less than $10,000,000. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) ten (10) Business Days after the date on which the financial statements of the Initial Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders or (ii) if such financial statements are actually delivered prior to the date on which they are required to be delivered pursuant to Section 6.1(a), the last Business Day of the calendar month in which such financial statements are actually delivered (but in no event later than the date set forth in clause (i) of this sentence). Any prepayment amounts credited pursuant to clause (ii) against such amount in clause (i) above shall be without duplication of any such credit in any prior period or subsequent period. Subject to clause (d) of this Section 2.11, if, on any date, the Initial Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of $20,000,000 in any fiscal year, then, unless the Initial Borrower has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to the Asset Sale Percentage of such Net Cash Proceeds shall be applied within five (5) Business Days of such date to prepay (A) outstanding Term Loans in accordance with this Section 2.11 and (B) at the Initial Borrower’s option, outstanding Indebtedness that constitutes First Lien Obligations (collectively, “Other Applicable Indebtedness”); provided that, notwithstanding the foregoing, within five (5) Business Days following each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Loans as set forth in Section 2.11(g). Any such Net Cash Proceeds may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and, in any event, within ten (10) Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding). Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Initial Borrower has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, 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 set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Initial Borrower hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law, presenting a material risk as described in clause (ii) above, or incurring material adverse Tax consequences; provided, however, that no such commercially reasonable actions shall be required to be taken later than 12 months after the date on which the proceeds of Term Loans were or would have been required to be prepaid hereunder using the proceeds of the applicable Asset Sale, Recovery Event or Excess Cash Flow), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under such applicable local law or material adverse Tax consequences would no longer result from such repatriation, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.11. In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Borrowers shall immediately repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. The Borrower Representative shall deliver to the Administrative Agent notice substantially in the form of Exhibit L or such other form as approved by the Administrative Agent of each prepayment required under this Section 2.11 not less than three (for distribution 3) Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the Agents and date such prepayment shall be made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Lenders) Mandatory Prepayment Date and (ii) the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent will promptly notify each applicable Lender of such notice and of each such Lender’s Pro Rata Share of the prepayment. Each such Lender may reject all of its Pro Rata Share of the prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such financial statements are actually delivered.
▇▇▇▇▇▇’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Subject to any requirements of any other Indebtedness, any Declined Proceeds may be retained by the Borrowers (d) such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, a certificate signed by a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such prepayment. Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and); provided that at any time after the Term Loans have been repaid or prepaid in full, the provisions of this sentence notwithstanding, any prepayments required by this Section 2.11 shall be applied first, to prepay any outstanding Revolving Loans, and second, to reduce the Swingline Loans and then Revolving Loans Collateralize any outstanding Letters of Credit, in each case, without a permanent any reduction of the Revolving Commitments. The application of any prepayment of Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmade on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) . Notwithstanding anything any of the other provisions of this Section 2.11, so long as no Default shall have occurred and be continuing, if any prepayment of Eurodollar Loans or Term SOFR Loans is required to be made under this Section 2.11 other than on the contrary last day of the Interest Period applicable thereto, the applicable Borrower may, in Section 2.11(d) or 2.17its sole discretion, with respect to deposit the amount of any mandatory such prepayment described in Section 2.11 that is allocated otherwise required to Tranche B Term Loans (be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such amount, prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the “Tranche B Prepayment Amount”)Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any time when Tranche A Term Loans remain outstanding, the further action by or notice to or from any Borrower will, in lieu of applying or any other Loan Party) to apply such amount to the prepayment of Tranche B such Eurodollar Loans or Term Loans, SOFR Loans in accordance with this Section 2.11 (determined as provided in Section 2.11(d) above, on of the date specified such prepayment was required to be originally made); provided that such unpaid Eurodollar Loans or Term SOFR Loans shall continue to bear interest in accordance with Section 2.11 for 2.15 until such prepayment, give unpaid Eurodollar Loans or Term SOFR Loans have been prepaid. Upon the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that occurrence and during the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrowercontinuance of any Default, the Administrative Agent will send shall also be authorized (without any further action by or notice to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the or from any Borrower or any other Loan Party) to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and apply such amount shall be applied to the prepayment of the Tranche A applicable Eurodollar Loans or Term Loans; provided that if after SOFR Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this subsection (h) pending application to any Eurodollar Loans or Term SOFR Loan shall be held and applied to the satisfaction of such Eurodollar Loans or Term SOFR Loans prior to any other application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall property as may be used to prepay the Tranche B Term Loans on a pro rata basisprovided for herein.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof within five (5) Business Days after receipt by the Group Member, such Net Cash Proceeds shall be applied within ten days after on or prior to the date that all post-closing adjustments associated therewith have been completed five (5) Business Days after receipt toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d); provided thatprovided, notwithstanding the foregoing, that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112008, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward to the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days (5) Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made Any prepayment pursuant to this Section 2.11 shall be applied, first, applied to the prepayment Term Loans in the order directed by the Borrower, or if no order is specified to the principal installments of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction direct order of the Revolving Commitmentsmaturity. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or (other than Indebtedness incurred under paragraph (g) of Section 7.2) and the Net Cash Proceeds received by the Borrower from the exercise of stock options) (i) an amount equal to 50% of the Net Cash Proceeds in respect of the issuance of such Capital Stock issued in compliance with Section 7and (ii) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof in respect of the incurrence of such Indebtedness, in each case, shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.9(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.9(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112005, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.9(d); provided, however, that the amount of any such Excess Cash Flow payment shall be reduced by the amount of any optional prepayments of principal made on the Term Loans during the fiscal year of the Borrower for which Excess Cash Flow is measured. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.9 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments2.15(b). The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Sources: Credit Agreement (Coinstar Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingother than Excluded Indebtedness, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and to the reduction of the Revolving Loans as set forth Commitments (in the case of any reduction of the Revolving Commitments, by an amount equal to 100% of such Net Cash Proceeds not otherwise applied to prepay the Term Loans), in accordance with Section 2.11(d4.2(c).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof on the date or dates of receipt of such Net Cash Proceeds, 100% of such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth (in the case of any reduction of the Revolving Commitments, by an amount equal to 25% of such Net Cash Proceeds not otherwise applied to prepay the Term Loans), in accordance with Section 2.11(d4.2(c). Each such prepayment and commitment reduction shall be made on If Borrower delivers a date (an “Excess Reinvestment Notice in respect of all or a specified portion of the Net Cash Flow Application Date”) no later than five days after the earlier of Proceeds, then (i) 100% of any portion of the Net Cash Proceeds received and not covered by such Reinvestment Notice shall be applied on the date on which the financial statements of receipt of such Net Cash Proceeds toward prepayment of the Borrower referred Term Loans and the reduction of the Revolving Commitments (in the case of any reduction of the Revolving Commitments, by an amount equal to 25% of such Net Cash Proceeds not covered by such Reinvestment Notice and not otherwise applied to prepay the Term Loans), in accordance with in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders4.2(c) and (ii) 100% of the date Reinvestment Prepayment Amount shall be applied on the Reinvestment Prepayment Date toward prepayment of the Term Loans and reduction of the Revolving Commitments (in the case of any reduction of the Revolving Commitments, by an amount equal to 25% of such financial statements are actually deliveredReinvestment Prepayment Amount not otherwise applied to prepay the Term Loans), in accordance with Section 4.2(c).
(dc) Amounts to be applied in connection with prepayments and Revolving Commitment reductions made pursuant to clause (a) or (b) of this Section 2.11 4.2 shall be applied, first, to the prepayment of the Term Loans until the Term Loans have been paid in accordance with Section 2.17(b) full and, second, to reduce permanently the Swingline Loans Revolving Commitments to the extent provided for in clause (a) and then Revolving Loans without a permanent (b) above, as applicable. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced; provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Collateral Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to clause (a) or (b) of this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under clause (a) or (b) of this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything . With respect to any mandatory prepayment, any Term Lender may elect in writing within two Business Days’ of receipt of notice of such prepayment from the Administrative Agent, to not have such prepayment applied to all or any portion of such Term Lender’s Term Loans; provided that to the contrary extent such Term Lender so elects, it shall also specify in Section 2.11(d) or 2.17a written notice that, with respect to the amount extent any other Term Lender refuses the application of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give whether it shall not accept any additional prepayment resulting therefrom or the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that extent to which it shall accept such mandatory prepayment. To the Administrative Agent prepare and provide extent such mandatory prepayment shall have been first offered to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) in so doing, the Borrower shall pay have complied with its obligation to the Tranche A Term Lenders an amount equal to set forth in this Section 4.2(c)), thereafter, so long as the portion of the Tranche B Prepayment Amount not accepted by the relevant LendersRevolving Commitments are outstanding, and such any remaining prepayment amount shall be applied to repay outstanding Revolving Loans.
(d) If on the thirtieth calendar day after the Closing Date (the “Remaining Proceeds Repayment Date”), any proceeds from borrowings under the Term Loans have not been applied to repay Holdings Notes (and to pay any accrued and unpaid cash interest thereon and related fees and expenses) as contemplated by Section 5.16 and in accordance with the Amended and Restated Guarantee and Collateral Agreement (such proceeds, the “Remaining Proceeds”), an amount equal to 100% of the Remaining Proceeds shall be applied on the Remaining Proceeds Repayment Date, toward the prepayment of the Tranche A Term LoansLoans in accordance with this Section 4.2(d). Remaining Proceeds shall be applied, first, except as described below, to the prepayment of the Term B-2 Loans until the Term B-2 Loans have been paid in full and, second, to prepayment of Term B-1 Loans until the Term B-1 Loans have been paid in full; provided that if after notwithstanding the foregoing, for so long as the Initial Term B-1 Lender shall hold any Term B-1 Loans, prior to the application of amounts pursuant such Remaining Proceeds to prepay Term B-2 Loans as described in first clause (ii)above, any portion such Remaining Proceeds shall be applied to prepay Term B-1 Loans held by the Initial Term B-1 Lender. Each prepayment of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount Loans under this Section 4.2 shall be used accompanied by accrued interest to prepay the Tranche B Term Loans date of such prepayment on a pro rata basisthe amount prepaid.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Lenders shall otherwise agree, if after the Closing Date any Redeemable Preferred Interests or Debt Capital Stock shall be issued issued, or incurred Funded Debt incurred, by any Group Member Loan Party (excluding any Funded Debt incurred in accordance with Section 7.2 or Capital Stock issued as in compliance with Section 7) or any initial cash proceeds that are related to a financing effect on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthis Agreement), an amount equal to 100% of the Net Cash Proceeds thereof (other than Excluded Proceeds) shall be applied on the date of such issuance or incurrence toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(d).
(b) If Unless the Required Lenders shall otherwise agree, if, on any date date, any Group Member Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(d); provided PROVIDED that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower, (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d)2.12(d) and (iii) no Reinvestment Notice may be delivered with respect to the Net Cash Proceeds of any Disposition of SS7 Assets.
(c) IfUnless the Required Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112002, there shall be Excess Cash Flow, the Borrower shallshall or shall cause the applicable Subsidiary to, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 100% of such Excess Cash Flow toward the prepayment of the Tranche B Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”"EXCESS CASH FLOW APPLICATION DATE") no later than five days ten Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts Subject to Section 2.18, amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.12 shall be applied, firstFIRST, to the prepayment of the Tranche B Term Loans in accordance with Section 2.17(b) andLoans, secondSECOND, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments and, THIRD, to the Borrower or such other Person as shall be lawfully entitled thereto. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account (which shall permit overnight investments in certain Cash Equivalents selected by the Administrative Agent until such funds are applied to the Obligations) established with the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and each of the Parents and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such cash collateral account are subject to any right or claim of any Person other than the Administrative Agent and the Secured Parties 37 or that the total amount of such funds is less than the amount of such excess, the Borrower shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in such cash collateral account, an amount equal to the excess of (a) the amount of such excess over (b) the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be free and clear of any such right and claim. The application of any prepayment pursuant to Section 2.11 and this Section 2.11 2.12 shall be made, firstFIRST, to ABR Base Rate Loans and, secondSECOND, to Eurodollar Loans, in each case in a manner which, in the Administrative Agent's reasonable judgment (which shall be conclusive) minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Loans under Section 2.11 and this Section 2.11 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Tsi Finance Inc)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Facilities Majority Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Fill-in Equity Proceeds shall be received, any Capital Stock shall be sold or issued (but only when the Consolidated Leverage Ratio is equal to or incurred greater than 5.00 to 1.00), or any Indebtedness shall be incurred, by any Group Member of the Holding Companies, any of the Borrowers or any of their Subsidiaries (excluding (i) any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued as in compliance with Section 7effect on the date of this Agreement, (ii) or any initial cash Indebtedness of Avalon Cable the proceeds that of which are related used to a financing of a fixed principal amount of Receivables Assets or fund ABRY Bridge Subordinated Debt, (iii) any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received ABRY Bridge Subordinated Debt, (iv) any Permitted Refinancing Indebtedness, (v) the Exchange Notes, (vi) any Indebtedness incurred by Borrower or any of its subsidiaries Holding Company in connection with a Permitted Receivables Financingborrowing from any other Holding Company, (vii) any Capital Stock issued by Avalon Cable to fund Avalon Cable Indebtedness, (viii) any Capital Stock issued to finance Capital Expenditures or Investments permitted hereunder, (ix) any Indebtedness constituting a Guarantee Obligation and (x) resales of common equity or common equity options of Avalon Cable referred to in Section 7.6(b)), an amount equal to to, without duplication, 100% of such Fill-in Equity Proceeds and of the Net Cash Proceeds thereof of such issuance of Capital Stock or incurrence of Indebtedness shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Tranche A Term Loan Commitments and Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess , provided that the Net Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements Proceeds of the Borrower referred Senior Discount Notes and any such Fill-in Equity Proceeds may be applied to in Section 6.1(b), for prepay the Fiscal Year with respect to which such prepayment is made, are required to be delivered to Indebtedness under the Administrative Agent (for distribution to the Agents Bridge Credit Agreement and the LendersExchange Note Indenture and, thereafter, to prepay the Indebtedness under the ABRY Bridge Subordinated Debt described in clause (a)(i) of the definition of such term and (ii) the date Permitted Refinancing Indebtedness in respect thereof before any portion of such financial statements are actually delivered.
(d) Amounts to Net Cash Proceeds and Fill-in Equity Proceeds shall be applied in connection accordance with prepayments made pursuant to this Section 2.11 shall be appliedand provided, firstfurther, to that certain other circumstances in which the prepayment requirements of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except 2.11(a) are modified are set forth in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest second proviso to the date of such prepayment on the amount prepaidSection 7.2(f)(i).
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred incurred, by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by the Borrower or any of its subsidiaries Subsidiaries (excluding any Indebtedness incurred in connection accordance with a Permitted Receivables FinancingSections 7.2(a)-(f) and (h)-(l) as in effect on the date of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and and, if prior to the Revolving Loans Delayed Funding Date, the reduction of the unfunded Term Loan Commitments as set forth in Section 2.11(d2.12(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and and, if prior to the Revolving Loans Delayed Funding Date, the reduction of the unfunded Term Loan Commitments as set forth in Section 2.11(d2.12(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and and, if prior to the Revolving Loans Delayed Funding Date, the reduction of the unfunded Term Loan Commitments as set forth in Section 2.11(d2.12(d). In addition, if on any date any Loan Party or any of its Subsidiaries shall receive Net Cash Proceeds from a Securitization, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans.
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112005 (for the period from the Closing Date to December 31, 2005), there shall be Excess Cash Flow, the Borrower shall, shall on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and and, if prior to the Delayed Funding Date, the reduction of the Revolving unfunded Term Loan Commitments as set forth in Section 2.11(d2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts Subject to Section 2.18, amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.12 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, secondif prior to the Delayed Funding Date, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitmentsunfunded Term Loan Commitments on a pro rata basis. The application of any prepayment pursuant to Section 2.11 and this Section 2.11 2.12 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans; provided that if no Default or Event of Default has occurred and is continuing and solely on terms and conditions acceptable to the Administrative Agent, the Borrower shall be entitled to temporarily place any amounts payable pursuant to this Section 2.12 in a cash collateral account to minimize the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Loans under Section 2.11 and this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.12 shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Worldspan L P)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Majority Facility Lenders of each affected Facility shall otherwise agree with the Parent Borrower not to require such a prepayment of the Term Loans,
(i) if any Redeemable Preferred Interests or Debt Capital Stock shall be issued by the Parent Borrower or any of its Subsidiaries for cash (other than the issuance by the Parent Borrower of Capital Stock to directors, officers or employees or to consultants pursuant to any stock option plan of the Parent Borrower or any Subsidiary the Net Cash Proceeds of which shall not exceed in the aggregate $15,000,000 in any fiscal year unless such issuance is made pursuant to the employee stock purchase plan of the Parent Borrower existing on the Closing Date (as it may be amended, modified, supplemented or replaced so long as after giving effect to any such amendment, modification, supplement or replacement, the eligible participants under such plan are not substantially different)), and the Consolidated Leverage Ratio at such time is greater than 2.75, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.12(d), or
(ii) if any Indebtedness shall be incurred by the Parent Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 77.2) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d).
(b) If Unless the Majority Facility Lenders of each affected Facility shall otherwise agree with the Parent Borrower not to require such a prepayment of the Term Loans, if on any date the Parent Back to Table of Contents Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(d).
(c) IfUnless the Majority Facility Lenders of each affected Facility shall otherwise agree with the Parent Borrower not to require such a prepayment of the Term Loans, if, for any Fiscal Year fiscal year of the Parent Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112007, there shall be Excess Cash Flow, the Parent Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Excess Cash Flow Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days 5 Business Days after the earlier of (i) the date on which the financial statements of the Parent Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.12 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving CommitmentsLoans. The application of any prepayment pursuant to this Section 2.11 2.12 shall be made, first, to ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Conmed Corp)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the ----------------------------------------------- Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued issued, or incurred Indebtedness incurred, by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d3.5(d); provided that no such prepayment or reduction shall be required with -------- respect to (i) any Indebtedness incurred in accordance with Section 8.2, (ii) Designated Equity Amounts, (iii) Capital Stock issued in connection with the Company's stock plans or arrangements for directors and employees of the Company and its Subsidiaries or (iv) Capital Stock issued to the Company or any Wholly- Owned Subsidiary.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d3.5(d); provided provided, -------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be subject to the exclusion from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 at any one time and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d3.5(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower Company commencing with the Fiscal Year fiscal year ending December March 31, 20111999, there shall be Excess Cash Flow, the Borrower Company shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d3.5(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application ---------------------------- Date”") no later than five fifteen days after the earlier of (i) the date on which the ---- financial statements of the Borrower Company referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 3.5 shall be applied, first, to ----- the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline ------ Revolving Credit Commitments. Subject to Section 3.11(d), any such prepayments of the Term Loans shall be applied to the Tranche A Term Loans and the Tranche B Term Loans pro rata according to the respective outstanding principal amounts --- ---- thereof held by the Term Loan Lenders with such amounts applied to reduce the then Revolving remaining installments of the respective Term Loans without a permanent pro rata based upon the --- ---- then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving -------- Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall or shall cause the Borrowing Subsidiaries to, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders under the relevant Facility on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 3.5 shall be mademade first to Base Rate Loans and Foreign Alternate Rate Loans, firstratably based on the outstanding principal amounts thereof, and second to ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Loans under this Section 2.11 3.5 (except in the case of Revolving Credit Loans that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything . Subject to the contrary in foregoing, amounts prepaid pursuant to this Section 2.11(d) or 2.17, with respect 3.5 need not be applied to prepay the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, owing in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount any particular currencies but rather shall be applied to against any such amounts owing in any such currencies as the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders Company shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basiselect.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, upon any Redeemable Preferred Interests sale, issuance or Debt shall be issued incurrence of Indebtedness of the Borrower or incurred its Restricted Subsidiaries by the Borrower or any Group Member of its Restricted Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement (other than Section 7.2(h)), then on the date of such sale, issuance or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets incurrence, the Term Loans and the Delayed Draw Term Loans shall be received prepaid, and/or the Revolving Credit Commitments shall be reduced, by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans Indebtedness, as set forth in Section 2.11(d2.13(f).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale (excluding a Purchase Price Refund or Recovery Event Event) then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, promptly and in any event not later than five Business Days after the date of receipt by the Borrower of such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of Proceeds, the Term Loans and the Delayed Draw Term Loans shall be prepaid, and/or the Revolving Loans Credit Commitments shall be reduced, by an amount equal to the amount of such Net Cash Proceeds, as set forth in Section 2.11(d2.13(f); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice or Reinvestment Notices shall not exceed $50,000,000 in any fiscal year of the Borrower, and (ii) on each Reinvestment Prepayment DateDate the Term Loans and the Delayed Draw Term Loans shall be prepaid, and/or the Revolving Credit Commitments shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Event, as set forth in Section 2.11(d2.13(f). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, for any Fiscal Year on the later of the Borrower commencing Designation Deadline and the date when the Completion Date has occurred with the Fiscal Year ending December 31respect to all Current Projects, 2011, if there shall be Excess Cash Flow, the Borrower shallthen, on the relevant Excess Cash Flow Application Date, apply the Term Loans and the Delayed Draw Term Loans shall be prepaid and/or the Revolving Credit Commitments shall be reduced, by an amount equal to the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments Flow, as set forth in Section 2.11(d2.13(f). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Unless the Required Prepayment Lenders shall otherwise agree, on the later of the Designation Deadline and the date when the Completion Date has occurred with respect to all Current Projects, the remaining balance in the Completion Reserve Account shall be applied to repay Term Loans and the Delayed Draw Term Loans as set forth in Section 2.13(f); provided, however, that the Borrower shall provide each of the Term Loan Lenders and the Delayed Draw Term Loan Lenders with five (5) Business Days prior written notice of such repayment and any Term Loan Lender or Delayed Draw Term Loan Lender, at its option, may elect, so long as there are any Term Loans or Delayed Draw Term Loans outstanding, not to accept its ratable portion of such prepayment in which event the provisions of the next sentence shall apply. Any Term Loan Lender or Delayed Draw Term Loan Lender declining such prepayment (such Lender being a “Declining Term Loan Lender” and the amount of such Lender’s ratable portion of such prepayment being the “Declined Term Amount”) shall give written notice to the Administrative Agent by 11:00 A.M. (New York City Time) on the Business Day immediately preceding the date on which such prepayment would otherwise be made and then the Declined Term Amount for all Declining Term Loan Lenders may be retained by the Borrower.
(e) Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock of the Borrower is issued by the Borrower (excluding Capital Stock issued in connection with compensatory stock options for employees and consultants issued in the ordinary course of business), then promptly and in any event not later than two Business Days after receipt of the Net Cash Proceeds of such issuance, (i) twenty-five percent (25%) of such Net Cash Proceeds shall be applied to prepay the outstanding Revolving Credit Loans, and if no Revolving Credit Loans are outstanding, retained by the Borrower; and (ii) twenty-five percent (25%) of such Net Cash Proceeds (the “Term Loan Reduction Proceeds”) shall be allocated pro rata to the prepayment of the outstanding Term Loans and Delayed Draw Term Loans; provided that if, at the time of such required prepayment, there are unfunded Delayed Draw Term Loan Commitments, then in lieu of the prepayment of Delayed Draw Term Loans under this clause (ii), (x) an amount equal to the lesser of the Term Loan Reduction Proceeds and the amount of the unfunded Delayed Draw Term Loan Commitments shall be deposited into the Completion Reserve Account; (y) the Delayed Draw Term Loan Commitments shall be reduced by the amount of such deposit; and (z) the Term Loan Reduction Proceeds not deposited into the Completion Reserve Account pursuant to clause (x), if any, shall be applied to the prepayment of the outstanding Delayed Draw Term Loans and any amounts remaining thereafter retained by the Borrower. Any prepayment of Term Loans under this clause (e) shall be applied to the installments of the Term Loans in inverse order of maturity. Any prepayment of Delayed Draw Term Loans under this clause (e) shall be applied to the installments of the Delayed Draw Term Loans in inverse order of maturity. Any prepayment of Revolving Credit Loans under this clause (e) shall not result in a reduction in the Revolving Credit Commitments.
(f) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to clauses (a), (b), (c) or (d) of this Section 2.11 2.13 shall be appliedallocated, first, (i) prior to the expiration of the Delayed Draw Term Loan Commitment Period, all such amounts shall be allocated pro rata to the Term Loan Facility and the Delayed Draw Term Loan Facility, to be applied (x) with respect to the Term Loan Facility, for the benefit of all Term Loan Lenders in accordance with their respective Term Loan Percentages as a prepayment towards the Term Loans and (y) with respect to the Delayed Draw Term Loan Facility, the then unfunded Delayed Draw Term Loan Commitments will be reduced by the lesser of the amount of such prepayment allocated to the Delayed Draw Term Loan Facility and the then amount of the unfunded Delayed Draw Term Loan Commitments, and an amount equal to the amount of the reduction in the Delayed Draw Term Loan Commitments shall be deposited into the Completion Reserve Account, and if the amount of such prepayment applied to the Delayed Draw Term Loan Facility is greater than the then unfunded Delayed Draw Term Loan Commitments, such excess shall be allocated, for the benefit of all Delayed Draw Term Loan Lenders in accordance with their respective Delayed Draw Term Loan Percentages as a prepayment towards the funded Delayed Draw Term Loans; and (ii) after the expiration of the Delayed Draw Term Loan Commitment Period, all such amounts shall be allocated pro rata towards the prepayment of the Term Loans in accordance with Section 2.17(b) andand the Delayed Draw Term Loans, and second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) Credit Commitments shall be accompanied by accrued interest prepayment of the Revolving Credit Loans and/or Swing Line Loans to the date extent, if any, that the Total Revolving Extensions of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to Credit exceed the amount of any mandatory prepayment described in Section 2.11 the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is allocated to Tranche B Term Loans less than the amount of such excess (such amount, the “Tranche B Prepayment Amount”because L/C Obligations constitute a portion thereof), at any time when Tranche A Term Loans remain outstanding, the Borrower willshall, in lieu of applying such amount to the prepayment extent of Tranche B Term Loansthe balance of such excess, as provided replace outstanding Letters of Credit and/or deposit an amount in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give Cash into a cash collateral account subject to documentation reasonably satisfactory to the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisAgent.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member Restricted Company (excluding any Debt or Redeemable Preferred Interests incurred in accordance with Section 7.2 (other than Credit Agreement Refinancing Debt) or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date within five Business Days of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member Restricted Company shall receive Net Cash Proceeds from any Asset Sale or Recovery Event and such Net Cash Proceeds are not prohibited under any Requirements of Law to be distributed or otherwise transferred without the consent or approval of a Governmental Authority then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, an amount equal to such Net Cash Proceeds shall be applied within ten days Business Days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 20112020, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d), (A) the ECF Percentage of such Excess Cash Flow, minus (B) the sum of (i) all voluntary prepayments of Term Loans (and Revolving Loans to the extent the applicable Revolving Commitments are permanently reduced by the amount of such payments) and any other prepayments of Permitted Other Debt, Permitted Refinancings and/or other Debt secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral made during such Fiscal Year, plus (ii) the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries in connection with Investments permitted by Section 7.6. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days ten Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered; provided, however, that a prepayment of Term Loans pursuant to this Section 2.11(c) shall only be required in the amount (if any) by which such payment amount for the applicable Fiscal Year exceeds $25,000,000.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans and Term SOFR Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in this Section 2.11 that is allocated to Tranche B B-1 Term Loans (such amount, the “Tranche B Designated Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, will give the Administrative Agent telephonic notice in writing of such mandatory prepayment at least three (promptly confirmed in writing3) requesting that Business Days prior to the Administrative Agent prepare and provide to date of such prepayment (each Tranche B Term Lender a notice (each, a “Mandatory Prepayment Option NoticeDate”) as described below). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B B-1 Term Lender a Prepayment Option Noticenotice, which shall be in the form of Exhibit GG (each, a “Prepayment Option Notice”), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Designated Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.B-1
Appears in 1 contract
Sources: Credit Agreement (Davita Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If on any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by date the Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Subsidiaries shall receive Net Cash Proceeds thereof from any Asset Sale, such Net Cash Proceeds shall be applied on or prior to the 30th day after such date of such issuance or incurrence toward the prepayment of the Term Loans and the permanent reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16.
(b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofof such Recovery Event, such Net Cash Proceeds shall be applied within ten days on or prior to the 30th day after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the permanent reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16.
(c) If, for If on any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flowdate, the Borrower shallor any of its Subsidiaries shall receive Net Cash Proceeds from any Disposition pursuant to Section 6.5(h) or (j), then, such Net Cash Proceeds shall be applied, if such Net Cash Proceeds are received by the Borrower or its Subsidiaries prior to the Conversion Date, on such date toward the relevant Excess prepayment of the outstanding Revolving Credit Loans without a corresponding reduction of the Revolving Credit Commitments in accordance with Section 2.16; provided that, it is understood and agreed that if such Net Cash Flow Application Proceeds are received by the Borrower or its Subsidiaries after the Conversion Date, apply the ECF Percentage Borrower and its Subsidiaries shall not be required to prepay the Loans.
(d) If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such Excess Cash Flow issuance or incurrence toward the prepayment of the Term Loans and the permanent reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the LendersSections 2.10(e) and (ii) the date such financial statements are actually delivered2.16.
(de) Amounts required by this Section to be applied in connection with prepayments made pursuant to this Section 2.11 the prepayment of the Term Loans and the permanent reduction of the Revolving Credit Commitments shall be applied, applied first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a Credit Commitments. Any such permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 Credit Commitments shall be madeaccompanied by prepayment of the Revolving Credit Loans to the extent, firstif any, to ABR Loans and, second, to Eurodollar Loansthat the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced. Each (x) prepayment of the Loans under this Section 2.11 shall be at the redemption prices set forth below and (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and (y) reduction of Revolving Credit Commitments shall be at the redemption prices (expressed as percentages of the principal amount of the Loans or Revolving Credit Commitments, as the case may be) set forth below, if prepaid or reduced during the twelve-month period beginning on May 9 of the years indicated below: 2003 104 % 2004 103 % 2005 102 % 2006 101 % 2007 100 % ; provided that, it is understood and agreed that the redemption prices above shall apply to mandatory prepayments of Revolving Credit Loans to the extent required in connection with a reduction of the Revolving Credit Commitments pursuant to this paragraph (e).
(ef) (i) Notwithstanding anything to the contrary in Section 2.11(d2.10(e) or 2.172.16, with respect to the amount of any mandatory prepayment described in Section 2.11 2.10 that is allocated to Tranche B the Term Loans of any Lender (such amountamounts, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(dparagraph (e) above, on the date specified in Section 2.11 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member Loan Party or its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with excluding Section 77.2(ii)(a)) or any initial cash proceeds that are related to a financing then on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets such incurrence, the Term Loans shall be received prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)incurrence.
(b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, on the date of receipt by the Borrower or such Subsidiary of such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of Proceeds, the Term Loans shall be prepaid, and the Revolving Loans as set forth shall be reduced (without a permanent reduction in Section 2.11(d)the Revolving Credit Commitments) by an amount equal to the amount of such Net Cash Proceeds; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date the Term Loans shall be prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward Event. The provisions of this Section do not constitute a consent to the prepayment consummation of the Term Loans and the Revolving Loans as set forth in any Disposition not permitted by Section 2.11(d)7.5.
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112007, there shall be Excess Cash Flow, the Borrower shallthen, on the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid and the Revolving Credit Loans shall be reduced (without a permanent reduction in the Revolving Credit Commitments) by an amount not less than $0 equal to (i) the ECF Percentage of such Excess Cash Flow toward minus (ii) the prepayment amount of all optional prepayments of the Term Loans during the year for which Excess Cash Flow was calculated, to the extent such prepayment was financed with internally generated cash and not with the reduction proceeds of the Revolving Commitments as set forth in Section 2.11(d)Indebtedness or Capital Stock. Each such prepayment and commitment reduction and/or repayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(di) The Borrower shall prepay the outstanding principal amount of the Dollar Revolving Credit Loans on any date on which the aggregate amount of such Loans, together the aggregate amount of Dollar L/C Obligations and Dollar Swing Line Loans exceeds the Total Dollar Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding Dollar Revolving Credit Loans, the aggregate amount of Dollar L/C Obligations plus the aggregate amount of Swing Line Loans exceeds the Total Dollar Revolving Credit Commitments then in effect, the Borrower shall prepay all outstanding Dollar Swing Line Loans, then cash collateralize Dollar L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the aggregate amount of such Dollar L/C Obligations and the Total Dollar Revolving Credit Commitments then in effect. The Administrative Agent shall establish in its name for the benefit of the applicable Revolving Credit Lenders a cash collateral account (the “Collateral Account”) into which it shall deposit such cash (or such cash described in clause (ii) below) to hold as collateral security for the Dollar L/C Obligations or Multicurrency L/C Obligations, as applicable.
(ii) The Borrower and each Foreign Borrower shall prepay the outstanding principal amount of the Multicurrency Revolving Credit Loans on any date on which the aggregate Effective Amount of such Loans, together the aggregate Effective Amount of Multicurrency L/C Obligations and Euro Swing Line Loans exceeds the Total Multicurrency Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding Multicurrency Revolving Credit Loans, the aggregate Effective Amount of Multicurrency L/C plus the aggregate amount of Euro Swing Line Loans exceeds the Total Multicurrency Revolving Credit Commitments then in effect, the Borrower and each Foreign Borrower shall prepay all outstanding Euro Swing Line Loans, then shall cash collateralize Multicurrency L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the Effective Amount of such Multicurrency L/C Obligations and the Total Multicurrency Revolving Credit Commitments then in effect.
(iii) The German Borrower shall prepay the outstanding principal amount of the German Revolving Credit Loans on any date on which the aggregate Effective Amount of such Loans, together the aggregate Effective Amount of German L/C Obligations and Effective Amount of German Swing Line Loans exceeds the aggregate German Revolving Credit Commitments, in the amount of such excess. If after giving effect to the prepayment of all outstanding German Revolving Credit Loans, the aggregate Effective Amount of German L/C Obligations plus the aggregate Effective Amount of German Swing Line Loans exceeds the aggregate German Revolving Credit Commitments then in effect, the German Borrower shall prepay all outstanding German Swing Line Loans, then cash collateralize German L/C Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with the Administrative Agent in an amount equal to the positive difference, if any, between the Effective Amount of such German L/C Obligations and the aggregate German Revolving Credit Commitments then in effect. The Administrative Agent shall establish in its name for the benefit of the applicable German Revolving Credit Lenders a cash collateral account into which it shall deposit such cash to hold as collateral security for the German L/C Obligations.
(e) Notwithstanding the foregoing, mandatory prepayments of Revolving Credit Loans that would otherwise be required pursuant to Section 2.12 solely as a result of fluctuations in Exchange Rates from time to time shall only be required to be made pursuant to Section 2.12 on the last Business Day of each month on the basis of the Exchange Rate in effect on such Business Day.
(f) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.12 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline repay Revolving Credit Loans and then Revolving Loans (without a any permanent reduction of the in Revolving Credit Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid).
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Upon the occurrence of any Redeemable Preferred Interests or Debt shall be issued or incurred Equity Issuance by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries Subsidiaries, (1) until such time as the Term Loans shall have been repaid in connection with a Permitted Receivables Financingfull, all Net Cash Proceeds thereof shall be applied within ten (10) Business Days after the date of such issuance toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.23(d); and (2) thereafter, an amount equal to 10060% of the Net Cash Proceeds thereof shall be applied on within ten (10) Business Days after the date of such issuance toward the prepayment of the Revolving Loans as set forth in Section 2.23(d).
(b) Upon the incurrence of any Debt (as specified in clauses (a) and (j) of the definition thereof) by the Company or any of its Subsidiaries (excluding any Obligations), an amount equal to 75% of the Net Cash Proceeds thereof shall be applied within ten (10) Business Days after the date of such incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.23(d).
(bc) If on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale Sale, Purchase Price Refund or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof (within ten (10) Business Days after such Asset Sale, Purchase Price Refund or Recovery Event), such Net Cash Proceeds shall be applied within ten days after on the date that all post-closing adjustments associated therewith have been completed 11th Business Day following such Asset Sale, Purchase Price Refund or Recovery Event toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.23(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $150,000 in any fiscal year of the Company; and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.23(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.23(a) and 2.23(b) shall be applied first, to the prepayment of the Term Loans, and second, to the prepayment of the Revolving Loans, but not the reduction of the Revolving Commitments. Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to Section 2.23(c) shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Credit Exposure to the extent, if any, that the Revolving Credit Exposure exceeds the amount of the Aggregate Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Exposure then outstanding is less than the amount of such excess (because LC Exposure constitutes a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the ratable benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar LIBOR Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Credit Loans that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything To the extent that the aggregate amount of outstanding Revolving Credit Exposure exceeds the Borrowing Base at any time, and upon the Administrative Agent’s demand therefor, the Borrowers shall pay such excess amount by first prepaying the Revolving Loans, next prepaying amounts paid by the Issuing Bank under the Letters of Credit for which it has not been reimbursed by the Borrowers, and then providing cash collateral for the Letters of Credit, as specified below. In the event that the Borrowers shall be required to provide cash collateral for the Letters of Credit pursuant to the contrary in Section 2.11(d) or 2.17foregoing sentence, with respect the Borrowers shall effect the same by paying to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amountAdministrative Agent, for the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date benefit of the Prepayment Option NoticeIssuing Bank, the relevant Term Loans of such Lender by immediately available funds in an amount equal to the portion required amount, which funds shall be retained by the Administrative Agent, for the benefit of the Tranche B Prepayment Amount indicated Issuing Bank, in such Lender’s Prepayment Option Notice as being applicable a cash collateral account until the earlier to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, occur of (i1) the Borrower date the affected Letters of Credit shall pay have been terminated or cancelled, and (2) the date the Revolving Credit Exposure no longer exceeds the Borrowing Base, at which time the cash collateral shall be paid to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisCompany.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred Indebtedness permitted in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that prepayments pursuant to this Section 2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with (or portion thereof in the Fiscal Year case of the fiscal year ending December 3128, 20112015), there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow toward over (y) solely to the prepayment extent not funded with the proceeds of Indebtedness, the aggregate amount of all optional prepayments of Term Loans made during such fiscal year pursuant to Section 2.10, plus the aggregate amount of all Loan purchases made during such fiscal year pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be the amount of the Term Loans and the reduction Borrower’s cash payment in respect of the Revolving Commitments as set forth in Section 2.11(dsuch purchase). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments). The application of any prepayment pursuant to this Section 2.11 shall be made, made first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the contrary in Section 2.11(d) or 2.17, with respect to date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of any mandatory such prepayment described in Section 2.11 that is allocated required to Tranche B Term Loans be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such amount, prepayment (the “Tranche B Prepayment Declined Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount ) by providing written notice to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 no later than two Business Days after the date of such Lender’s receipt of notice from the Prepayment Option NoticeAdministrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such Lender’s Declined Amount may be retained by the Borrower.
(f) Notwithstanding any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the relevant Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such Lender by affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, 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 five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds or Excess Cash Flow to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower shall pay to rather than such Foreign Subsidiary, less the relevant Tranche B Term Lenders amount of additional 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 aggregate amount necessary to prepay Net Cash Proceeds or Excess Cash Flow that portion of the outstanding relevant Term Loans as described above in respect of which would be calculated if received by such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (iiForeign Subsidiary), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by CC Operating or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d).
(b) If on any date CC Operating or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in any fiscal year of CC Operating and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d).
(c) If, for any Fiscal Year fiscal year of the Borrower CC Operating commencing with the Fiscal Year fiscal year ending December 31, 20112003, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower CC Operating referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.9 shall be applied, first, to the prepayment of prepay the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.9 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit and Exchange Offer Agreement (Crown Castle International Corp)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member Restricted Company (excluding any Debt or Redeemable Preferred Interests incurred in accordance with Section 7.2 (other than Credit Agreement Refinancing Debt) or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date within five Business Days of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member Restricted Company shall receive Net Cash Proceeds from any Asset Sale or Recovery Event and such Net Cash Proceeds are not prohibited under any Requirements of Law to be distributed or otherwise transferred without the consent or approval of a Governmental Authority then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, an amount equal to such Net Cash Proceeds shall be applied within ten days Business Days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 20112020, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d), (A) the ECF Percentage of such Excess Cash Flow, minus (B) the sum of (i) all voluntary prepayments of Term Loans (and Revolving Loans to the extent the applicable Revolving Commitments are permanently reduced by the amount of such payments) and any other prepayments of Permitted Other Debt, Permitted Refinancings and/or other Debt secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral made during such Fiscal Year, plus (ii) the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries in connection with Investments permitted by Section 7.6. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days ten Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered; provided, however, that a prepayment of Term Loans pursuant to this Section 2.11(c) shall only be required in the amount (if any) by which such payment amount for the applicable Fiscal Year exceeds $25,000,000.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in this Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Designated Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, will give the Administrative Agent telephonic notice in writing of such mandatory prepayment at least three (promptly confirmed in writing3) requesting that Business Days prior to the Administrative Agent prepare and provide to date of such prepayment (each Tranche B Term Lender a notice (each, a “Mandatory Prepayment Option NoticeDate”) as described below). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Noticenotice, which shall be in the form of Exhibit GG (each, a “Prepayment Option Notice”), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Designated Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Designated Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Designated Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
(f) Revolving Loan Prepayments.
(i) In the event of the termination of all the Alternative Currency Revolving Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Alternative Currency Revolving Loans and all outstanding Swingline Loans and replace all outstanding Alternative Currency Letters of Credit or cash collateralize all outstanding Alternative Currency Letters of Credit in accordance with the procedures set forth in Section 3.10. In the event of the termination of all the Dollar Revolving Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Dollar Revolving Loans and replace all outstanding Dollar Letters of Credit or cash collateralize all outstanding Dollar Letters of Credit in accordance with the procedures set forth in Section 3.10.
(ii) In the event of any partial reduction of the Alternative Currency Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Borrower and the Alternative Currency Revolving Lenders of the sum of the Alternative Currency Revolving Extensions of Credit after giving effect thereto and (y) if the sum of the Alternative Currency Revolving Extensions of Credit would exceed the aggregate amount of Alternative Currency Revolving Commitments after giving effect to such reduction, then the Borrower shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Alternative Currency Revolving Loans and third, replace outstanding Alternative Currency Letters of Credit or cash collateralize outstanding Alternative Currency Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. In the event of any partial reduction of the Dollar Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Borrower and the Dollar Revolving Lenders of the sum of the Dollar Revolving Extensions of Credit after giving effect thereto and (y) if the sum of the Dollar Revolving Extensions of Credit would exceed the aggregate amount of Dollar Revolving Commitments after giving effect to such reduction, then the Borrower shall, on the date of such reduction, first, repay or prepay Dollar Revolving Loans and second, replace outstanding Dollar Letters of Credit or cash collateralize outstanding Dollar Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess.
(iii) In the event that the sum of all Alternative Currency Revolving Lenders’ Alternative Currency Revolving Extensions of Credit exceeds the Alternative Currency Revolving Commitments then in effect (including, without limitation, as a result of any Revaluation Date or as a result of currency fluctuations), the Borrower shall, without notice or demand, immediately first, repay or prepay Swingline Loans, second, repay or prepay Alternative Currency Revolving Loans, and third, replace outstanding Alternative Currency Letters of Credit or cash collateralize outstanding Alternative Currency Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. In the event that the sum of all Dollar Revolving Lenders’ Dollar Revolving Extensions of Credit exceeds the Dollar Revolving Commitments then in effect, the Borrower shall, without notice or demand, immediately first, repay or prepay Dollar Revolving Loans, and second, replace outstanding Dollar Letters of Credit or cash collateralize outstanding Dollar Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess.
(iv) In the event that the aggregate LC Obligations exceed the LC Commitment then in effect, the Borrower shall, without notice or demand, immediately replace outstanding Letters of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess.
(g) [Reserved].
(h) In the event that, on or prior to the date that is six months after the Closing Date, the Borrower (x) prepays, refinances, substitutes or replaces any Tranche B Term Loan pursuant to a Repricing Transaction (including, for avoidance of doubt, any prepayment made pursuant to Section 2.11(a) that constitutes a Repricing Transaction), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Tranche B Term Lenders, (I) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Tranche B Term Loan so prepaid, refinanced, substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Tranche B Term Loan outstanding immediately prior to such amendment. Such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If on any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by date the Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Subsidiaries shall receive Net Cash Proceeds thereof from any Asset Sale, such Net Cash Proceeds shall be applied on or prior to the 30th day after such date of such issuance or incurrence toward the prepayment of the Term Loans and the permanent reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16.
(b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofof such Recovery Event, such Net Cash Proceeds shall be applied within ten days on or prior to the 30th day after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the permanent reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans as set forth Credit Commitments in Section 2.11(d)accordance with Sections 2.10(e) and 2.16.
(c) If, for If on any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flowdate, the Borrower shallor any of its Subsidiaries shall receive Net Cash Proceeds from any Disposition pursuant to Section 6.5(h), (j) or (k), then, such Net Cash Proceeds shall be applied, if such Net Cash Proceeds are received by the Borrower or its Subsidiaries prior to the Conversion Date, on such date toward the relevant Excess prepayment of the outstanding Revolving Credit Loans without a corresponding reduction of the Revolving Credit Commitments in accordance with Section 2.16.
(d) If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.2), an amount equal to 100% of the Net Cash Flow Application Date, apply Proceeds thereof shall be applied on the ECF Percentage date of such Excess Cash Flow issuance or incurrence toward the prepayment of the Term Loans and the permanent reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the LendersSections 2.10(e) and (ii) the date such financial statements are actually delivered2.16.
(de) Amounts required by this Section to be applied in connection with prepayments made pursuant to this Section 2.11 the prepayment of the Term Loans and the permanent reduction of the Revolving Credit Commitments shall be applied, applied first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a Credit Commitments. Any such permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 Credit Commitments shall be madeaccompanied by prepayment of the Revolving Credit Loans to the extent, firstif any, to ABR Loans and, second, to Eurodollar Loansthat the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced. Each (x) prepayment of the Loans under this Section 2.11 shall be at the redemption prices set forth below and (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and (y) reduction of Revolving Credit Commitments shall be at the redemption prices (expressed as percentages of the principal amount of the Loans or Revolving Credit Commitments, as the case may be) set forth below, if prepaid or reduced during the twelve-month period beginning on May 9 of the years indicated below: Year Percentage ---- ---------- 2003............................................ 104% 2004............................................ 103% 2005............................................ 102% 2006............................................ 101% 2007............................................ 100% ; provided that, it is understood and agreed that the redemption prices above shall apply to mandatory prepayments of Revolving Credit Loans to the extent required in connection with a reduction of the Revolving Credit Commitments pursuant to this paragraph (e).
(ei) Notwithstanding anything to the contrary in Section 2.11(d2.10(e) or 2.172.16, with respect to the amount of any mandatory prepayment described in Section 2.11 2.10 that is allocated to Tranche B the Term Loans of any Lender (such amountamounts, the “Tranche B "Prepayment Amount”"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(dparagraph (e) above, on the date specified in Section 2.11 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a “"Prepayment Option Notice”") as described below. .
(ii) As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit GJ, and shall include an offer by the Borrower to prepay on the date (each a “"Mandatory Prepayment Date”") that is 10 ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s 's Prepayment Option Notice as being applicable to such Lender’s Tranche B 's Term Loans.
(iii) In the event that any of the Term Loan Lenders (each, a "Declining Term Loan Lender") is not willing to accept all or a portion of its Prepayment Amount on the Mandatory Prepayment Date, such Declining Term Loan Lender shall notify the Administrative Agent in writing of the portion of its Prepayment Amount that it is not willing to accept no later than three Business Days after the date of the Prepayment Option Notice, provided that, if a Term Loan Lender has not notified the Administrative Agent of its intent to decline all or a portion of its Prepayment Amount, such Lender shall be deemed to have accepted its entire Prepayment Amount.
(iv) The Administrative Agent shall then promptly distribute to each Term Loan Lender a revised Prepayment Option Notice including a pro rata portion of the Prepayment Amount (the "Revised Prepayment Amount") declined by the Declining Term Loan Lenders. In the event that any Term Loan Lender does not wish to accept all or a portion of the Revised Prepayment Amount, such Declining Term Loan Lender shall notify the Administrative Agent in writing of the portion of its Revised Prepayment Amount that it is not willing to accept no later than three Business Days after the date of the revised Prepayment Option Notice, provided that, if a Term Loan Lender has not notified the Administrative Agent of its intent to decline all or a portion of its Revised Prepayment Amount, such Lender shall be deemed to have accepted its entire Revised Prepayment Amount.
(v) In the event that any portion of the Prepayment Amount has been declined by the Term Loan Lenders pursuant to clause (iv) above prior to the Conversion Date, such amount shall be applied to the reduction of the Revolving Credit Commitments in accordance with Section 2.10(g).
(vi) On the Mandatory Prepayment Date, (ix) the Borrower shall pay to the relevant Tranche B Term Loan Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) as described above and (iiy) the Borrower shall pay be entitled to retain the remaining portion of the Prepayment Amount not accepted by the relevant Lenders or applied pursuant to Section 2.10(g) below.
(i) Notwithstanding anything to the Tranche A Term Lenders contrary in Section 2.10(e) or 2.16, with respect to the amount of any mandatory prepayment described in Section 2.10 that is allocated to reduce the Revolving Credit Commitment of any Lender (such amounts, the "Reduction Amount"), the Borrower will, in lieu of applying such amount to the reduction of the Revolving Credit Commitments as provided in paragraph (e) above, on the date specified in Section 2.10 for such reduction, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Revolving Credit Lender a notice (each, a "Reduction Option Notice") as described below.
(ii) As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Revolving Credit Lender a Reduction Option Notice, which shall be in the form of Exhibit K, and shall include an offer by the Borrower to reduce on the Mandatory Prepayment Date that is ten Business Days after the date of the Reduction Option Notice, the relevant Revolving Credit Commitment of such Lender by an amount equal to the portion of the Tranche B Reduction Amount indicated in such Lender's Reduction Option Notice as being applicable to such Lender's Revolving Credit Commitment.
(iii) In the event that any of the Revolving Credit Lenders (each, a "Declining Revolving Credit Lender") is not willing to accept all or a portion of its Reduction Amount on the Mandatory Prepayment Date, such Declining Revolving Credit Lender shall notify the Administrative Agent in writing of the portion of its Reduction Amount that it is not willing to accept no later than three Business Days after the date of the Reduction Option Notice, provided that, if a Revolving Credit Lender has not notified the Administrative Agent of its intent to decline all or a portion of its Reduction Amount, such Lender shall be deemed to have accepted its entire Reduction Amount.
(iv) The Administrative Agent shall then promptly distribute to each Revolving Credit Lender a revised Reduction Option Notice including a pro rata portion of the Reduction Amount (the "Revised Reduction Amount") declined by the Declining Revolving Credit Lenders. In the event that any Revolving Credit Lender does not wish to accept all or a portion of its Revised Reduction Amount, such Declining Revolving Credit Lender shall notify the Administrative Agent in writing of the portion of its Revised Reduction Amount that it is not willing to accept no later than three Business Days after the date of the revised Reduction Option Notice, provided that, if a Revolving Credit Lender has not notified the Administrative Agent of its intent to decline all or a portion of its Revised Reduction Amount, such Lender shall be deemed to have accepted its entire Revised Reduction Amount.
(v) In the event that any Prepayment Amounts are declined by the Term Loan Lenders pursuant to Section 2.10(f)(iv), the Administrative Agent shall then promptly distribute a Reduction Option Notice with respect to such declined Prepayment Amounts to each Revolving Credit Lender which notice shall constitute an offer by the Borrower to reduce such Lender's Revolving Credit Commitment by the portion of the Prepayment Amount indicated in such Lender's Reduction Option Notice as being applicable to such Lender. In the event that any Revolving Credit Lender is not willing to accept a reduction of its Revolving Credit Commitment pursuant to this clause (v), it shall notify the Administrative Agent in writing of the portion of the Prepayment Amount it is not willing to accept no later than two Business Days after the date of the Reduction Option Notice delivered pursuant to this clause (v).
(vi) On the Mandatory Prepayment Date, (x) the Revolving Credit Commitment of each Revolving Credit Lender shall be reduced by the amount of the Reduction Amount and Prepayment Amount accepted by such Revolving Credit Lender pursuant to this Section 2.10(g), (y) the Borrower shall pay to the relevant Revolving Credit Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Revolving Credit Loans in respect of which such Lenders have accepted prepayment as described above in accordance with Section 2.10(e) and (z) the Borrower shall be entitled to retain the remaining portion of the Reduction Amount and Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than any Debt Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related 7.2), concurrently with, and as a condition to a financing closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in clause (g) of this Section 2.11(d)2.11.
(b) If Subject to clause (d) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to the excess of (i) ECF Percentage of such Excess Cash Flow over (ii) to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.3, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined by the actual cash purchase price paid by such Permitted Auction Purchaser for such Purchase and not the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction permitted hereunder and (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments) made by the Borrower during the Specified Period for such Excess Cash Flow Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Loans as set forth in clause (g) of this Section 2.11. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than (i) 10 Business Days after the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders or (ii) if such financial statements are actually delivered prior to the date on which they are required to be delivered pursuant to Section 6.1(a), the last Business Day of the calendar month in which such financial statements are actually delivered (but in no event later than the date set forth in clause (i) of this sentence).
(c) Subject to clause (d) of this Section 2.11, if, on any date date, the Borrower or any Group Member Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of $5,000,000 in any fiscal year, then, to unless no Default or Event of Default has occurred and is continuing and the extent Borrower has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Notice shall not have been delivered in respect thereofEvent”), then such Net Cash Proceeds shall be applied within ten days after the five Business Days of such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the to prepay (A) outstanding Term Loans in accordance with this Section 2.11 and (B) at the Revolving Loans Borrower’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis incurred (x) as set forth in Permitted First Priority Refinancing Debt or (y) pursuant to Section 2.11(d7.2(b)(vi) (collectively, “Other Applicable Indebtedness”); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event any Asset Sale or Recovery Event, shall be applied toward to prepay the prepayment of the Term Loans and the Revolving outstanding Loans as set forth in Section 2.11(d2.11(g). Any such Net Cash Proceeds may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding).
(d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) Ifabove), for to the extent that any Fiscal Year of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Foreign Subsidiary (a “Foreign Disposition”) or Excess Cash Flow attributable to Foreign Subsidiaries (or foreign branches of Domestic Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the United States (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the Borrower commencing with relevant directors), the Fiscal Year ending December 31, 2011, there shall be portion of such Net Cash Proceeds or Excess Cash FlowFlow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Foreign Subsidiary or branch so long, but only so long, as such applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax cost consequences), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under such applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than 10 Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.11.
(e) In the event the aggregate amount of Revolving Loans, L/C Obligations and Swingline Loans then outstanding exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term shall immediately repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the reduction extent necessary to remove such Revolving Excess.
(f) The Borrower shall deliver to the Administrative Agent notice of each prepayment required under this Section 2.11 not less than five Business Days prior to the Revolving Commitments as set forth in Section 2.11(d). Each date such prepayment and commitment reduction shall be made on (each such date, a date (an “Excess Cash Flow Application Mandatory Prepayment Date”) no later than five days after the earlier of ). Such notice shall set forth (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Mandatory Prepayment Date and (ii) the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent will promptly notify each applicable Lender of such notice and of each such Lender’s Pro Rata Share of the prepayment. Each such Lender may reject all of its Pro Rata Share of the prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such financial statements are actually deliveredLender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Subject to any requirements of the Senior Notes and any other Indebtedness, any Declined Proceeds may be retained by the Borrower. The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment.
(dg) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and); provided that at any time after the Term Loans have been repaid or prepaid in full, the provisions of this sentence notwithstanding, any prepayments required by this Section 2.11 shall be applied first, to prepay any outstanding Revolving Loans, and second, to reduce the Swingline Loans and then Revolving Loans Collateralize any outstanding Letters of Credit, in each case, without a permanent any reduction of the Revolving Commitments. The application of any prepayment of Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmade on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Capital Stock shall be issued by Holdings on any date (other than issuances (a) to the Sponsor and its Control Investment Affiliates, (b) to management, employees, directors or consultants of Holdings or any of its Subsidiaries pursuant to any employee stock option or stock purchase plan or other employee benefit plan in existence from time to time, or (c) to other Persons to the extent the proceeds of such issuances are concurrently applied to fund Permitted Acquisitions), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied (unless a Reinvestment Notice shall be delivered in respect thereof) on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f); provided that (i) no such application of Net Cash Proceeds shall be required if, at the time of such issuance of Capital Stock, the Borrower’s Consolidated Leverage Ratio is less than 2.50:1.00 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f).
(b) If any Indebtedness shall be incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingother than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(f).
(bc) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale (including sales or issuances of Capital Stock of the Borrower or any of its Subsidiaries) or Recovery Event in excess of $500,000 then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(f); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d4.2(f).
(cd) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112006, there shall be positive Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d4.2(f). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(de) If on any date a Group Member shall receive Net Cash Proceeds from any Allotted Disposition, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f).
(f) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 4.2 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Base Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Protection One Alarm Monitoring Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by the Borrower or any of its subsidiaries in connection the other Loan Parties (excluding any Indebtedness permitted by Section 7.2 (other than with a Permitted Receivables Financingrespect to subsection (i) thereof)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date within one Business Day of receipt by such Person of such issuance or incurrence Net Cash Proceeds toward the prepayment of the Term Loans and the Revolving Loans as set forth Obligations in accordance with Section 2.11(d2.12(g).
(bi) If on any date any Group Member shall receive With respect to the Net Cash Proceeds from any Asset Sale as to which the Borrower or Recovery Event then, to the extent any other Loan Party making such Asset Sale has not delivered a Reinvestment Notice shall not have been delivered within the period required therefor in respect the definition thereof, the Facility Proportionate Share of such Net Cash Proceeds (or portion thereof not subject to such a Reinvestment Notice) shall be applied applied, within ten days after two Business Days of the date that all post-closing adjustments associated therewith have been completed expiration of the aforesaid required period for delivery of a Reinvestment Notice with respect to such Asset Sale, toward the prepayment of the Term Loans and the Revolving Loans as set forth Obligations in accordance with Section 2.11(d2.12(g); provided provided, that, notwithstanding the foregoing, (A) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any Fiscal Year and (B) on each Reinvestment Prepayment Date, an amount equal to the Facility Proportionate Share of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans Obligations in accordance with Section 2.12(g).
(ii) With respect to the Net Cash Proceeds from any Disposition of Property (other than any Asset Sale with respect to which a prepayment is required to be made pursuant to Section 2.12(b)(i)) that are required pursuant to the terms of any First Lien Secured Obligations to be applied to (or offered to be applied to) the repayment of any First Lien Secured Obligations (in the event any such repaid First Lien Secured Obligations constitute a revolving credit facility, accompanied by a permanent reduction of commitments under such revolving credit facility in the amount of such repayment), the Facility Proportionate Share of such Net Cash Proceeds shall be applied, within one Business Day of the date any of such Net Cash Proceeds are required to be so applied (or offered to be so applied) to any First Lien Secured Obligations, toward the prepayment of the Obligations in accordance with Section 2.12(g).
(iii) In the event any Net Cash Proceeds from any Asset Sale are not applied toward the prepayment of the Obligations pursuant to Section 2.12(b)(i) as a result of not being deemed part of the “Facility Proportionate Share” of such Net Cash Proceeds and such amounts are not applied to the Revolving Loans as set forth prepayment and permanent reduction of First Lien Secured Obligations for any reason whatsoever (including the failure of any holder of such First Lien Secured Obligations to accept an offer of prepayment) within 60 days of the application of the Facility Proportionate Share of such Net Cash Proceeds toward the prepayment of the Obligations pursuant to Section 2.12(b)(i), then such amounts shall, on the last day of such 60-day period, be applied toward the prepayment of the Obligations in accordance with Section 2.11(d2.12(g).
(c) No later than (i) two Business Days following the date on which Loss Proceeds are required to be applied to the prepayment of Obligations under Section 5.14 of the Disbursement Agreement, (ii) two Business Days following the date on which Insurance Proceeds and/or Eminent Domain Proceeds are required to be applied to the prepayment of the Obligations pursuant to Section 2.24 or (iii) unless the Borrower otherwise notifies the Administrative Agent in writing within such two Business Day period that such Liquidated Damages have been allocated for future application toward Project Costs, two Business Days following the date on which any Loan Party receives Liquidated Damages (provided, that to the extent such Liquidated Damages are paid pursuant to any obligation, default or breach, the results of which can be remedied through the expenditure of money, and the applicable Loan Party determines in its reasonable judgment to undertake such remedy, the Liquidated Damages subject to this subsection (iii) shall be net of reasonable amounts that such Loan Party anticipates to incur in connection with such remedy (such amounts, the “Reinvested Amounts”); and provided, further, that in the event such Loan Party has not expended any Reinvested Amounts in furtherance of such remedy by the date that is six months after a Loan Party initially received the relevant Liquidated Damages or, in the case of any Reinvested Amounts to be expended in furtherance of such remedy pursuant to a contract entered into during such six-month period, such amounts have not been expended by the date that is twelve months after a Loan Party initially received the relevant Liquidated Damages, such non-expended amounts shall be applied on the second Business Day following such sixth-month or twelve-month, as the case may be, anniversary date toward the prepayment of the Obligations in accordance with Section 2.12(g)), the Borrower shall apply such funds toward the prepayment of the Obligations in accordance with Section 2.12(g).
(d) If, for any Fiscal Year of the Borrower Year, commencing with the Fiscal Year ending December 31, 2011in which the Phase II Opening Date occurs, there shall be Excess Cash Flow, the Borrower shall, and shall cause the applicable Loan Parties to, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth Obligations in accordance with Section 2.11(d2.12(g). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower Loan Parties referred to in Section 6.1(b6.1(a), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b(i) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in In the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest each issuance of Senior Secured Notes prior to the Seventh Amendment Effective Date, on a date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, be determined by the Borrower will, in lieu of applying such amount pursuant to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give written notice to the Administrative Agent telephonic notice delivered on or prior to such issuance (promptly confirmed such date to be no later than the third Business Day after such issuance), the Revolving Credit Commitments shall be reduced and the Term B Loans shall be prepaid in writingan amount equal to 75% of the Net Cash Proceeds from such issuance in the following order of priority until such amount has been fully applied:
(A) requesting that first, the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (eachRevolving Credit 1 Commitments shall automatically, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from without further action by the Borrower, the Administrative Agent will send or the Lenders, be permanently reduced until reduced to each Tranche B Term Lender a Prepayment Option Noticezero dollars ($0.00);
(B) second, which the Revolving Credit 2 Commitments shall be in the form of Exhibit Gautomatically, and shall include an offer without further action by the Borrower Borrower, the Administrative Agent or the Lenders, be permanently reduced in an aggregate amount, for all issuances of Senior Secured Notes, equal to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date $60,975,000 plus 10% of the Prepayment Option Noticeamount of New Revolving Credit Commitments established after August 13, 2009 and prior to such issuance;
(C) third, the relevant Term Loans Revolving Credit 2 Commitments shall automatically, without further action by the Borrower, the Administrative Agent or the Lenders, be permanently further reduced in an aggregate amount, for all issuances of such Lender by an amount Senior Secured Notes, equal to the portion $54,877,500 plus 9% of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable amount of New Revolving Credit Commitments established after August 13, 2009 and prior to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Dateissuance;
(D) fourth, (i) the Borrower shall pay to prepay the relevant Tranche Term B Loans in such amounts so that no installment will be due on the Term Lenders B Loans on September 30, 2012;
(E) fifth, the aggregate amount necessary to prepay that portion of the outstanding relevant Term B Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) prepaid and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount Revolving Credit 2 Commitments shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans permanently reduced on a pro rata basisbasis in accordance with the then outstanding amounts of the Term B Loans and Revolving Credit 2 Commitments. The reduction of the Revolving Credit 2 Commitments pursuant to this clause (E) shall be automatic and without any further action by the Borrower, the Administrative Agent or the Lenders. If, at the time of any such reduction in Revolving Credit Commitments, the Total Revolving 1 Extensions of Credit would exceed the Total Revolving Credit 1 Commitments, as so reduced, or the Total Revolving 2 Extensions of Credit would exceed the Total Revolving Credit 2 Commitments as so reduced, the Borrower shall make a prepayment of Revolving Credit 1 Loans or Revolving Credit 2 Loans and/or Swing Line Loans, as applicable, in an amount such that the Total Revolving 1 Extensions of Credit shall not exceed the Total Revolving Credit 1 Commitments as so reduced, and the Total Revolving 2 Extensions of Credit shall not exceed the Total Revolving Credit 2 Commitments as so reduced. All reductions in Revolving Credit Commitments pursuant to this Section 2.12(e)(i) shall be made pro rata among the Revolving Credit 1 Lenders or the Revolving Credit 2 Lenders, as applicable, according to their respective Revolving Credit 1 Percentages or Revolving Credit 2 Percentages, as the case may be.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by Holdings, the Borrower or any Group Member of its Restricted Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(e).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (excluding (i) the sale of assets securing IDB financings and (ii) purchase money indebtedness used to repay the sales in clause (i) above) then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(e); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 (or its equivalent in other currencies as of the date of receipt of such proceeds, as determined by the Borrower in good faith based on then prevailing exchange rates) in the aggregate (exclusive of any reinvestment in IDB) and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(e).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending on December 3130, 20112000, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage (in effect as of the last day of such fiscal year) of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.11(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings, the Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any sale or issuance of equity or Capital Stock (except any proceeds of (i) equity sold or issued to the principal equity investors or management or employees and the exercise of options and warrants held by them, (ii) Replacement Preferred Stock to the extent applied to redeem or repay the Existing Preferred Stock and (iii) common equity issued or sold after the Effective Date to the extent applied to redeem or repay the Existing Preferred Stock, then such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(e).
(e) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.Term
Appears in 1 contract
Sources: Credit Agreement (Doane Pet Care Co)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by the Borrower or any Group Member of its Subsidiaries (excluding any Debt incurred Indebtedness Incurred in accordance with Section 7.2 or Capital Stock issued in compliance accordance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.9), an amount equal to 100% of the Net Cash Proceeds thereof of any Indebtedness Incurred and 75% of the Net Cash Proceeds of any Capital Stock issued shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d); provided that, PROVIDED that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.10(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111997, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.10(d). Each Except as set forth in Section 2.16(d), each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”"EXCESS CASH FLOW APPLICATION DATE") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.10 shall be applied, firstFIRST, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, secondSECOND, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.10 shall be made, firstFIRST, to ABR Base Rate Loans and, secondSECOND, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.10 (except in the case of Revolving Credit Loans that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Axiohm Transaction Solutions Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary provided herein, Borrower shall be entitled to take possession of six (6) TE Lanes (the "Six TE Lanes") from any source for installation by Borrower in Section 2.11(done or more new Parks, and Foothill shall release such Six TE Lanes from all liens in favor of Foothill without requiring Borrower to make any mandatory prepayment to reduce the outstanding principal balance of the Loan Account and the Obligations under the Loan Agreement, or to make a payment of any other fee or expense to Foothill. Thereafter, if Borrower desires to install one or more additional TE Lanes (the "Additional TE Lanes") in one or 2.17more Parks, Borrower may obtain a release of the lien held by Foothill on such Additional TE Lanes by making a mandatory prepayment of $100,000 to Foothill with respect to each Additional ▇▇ ▇▇▇▇ to be released. Notwithstanding anything to the amount contrary provided herein, upon the sale of any ▇▇ ▇▇▇▇ by Borrower to any third party, Borrower shall make a mandatory prepayment described in Section 2.11 the Required Amount, if any, set forth in Schedule A, and Foothill shall upon receipt of such mandatory prepayment release its lien on such ▇▇ ▇▇▇▇.
(b) Notwithstanding anything to the contrary provided herein, upon the consummation of a Release Transaction, no mandatory payment to Foothill or other payment to reduce the outstanding principal balance on the Obligations or the Loan Account shall be required hereunder, and provided no Event of Default shall then exist, Foothill shall release its liens on the Real Property that is allocated to Tranche B Term Loans the subject of the Release Transaction within five (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d5) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date receipt of Borrower's request for such release. Borrower shall be entitled to one hundred percent (100%) of the Prepayment Option Notice, Net Cash Proceeds from the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisRelease Transactions.
Appears in 1 contract
Sources: Loan and Security Agreement (Malibu Entertainment Worldwide Inc)
Mandatory Prepayments and Commitment Reductions. In addition to the Scheduled Amortization, on and after the Closing Date, the following mandatory prepayments apply: (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member one hundred percent (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7100%) or any initial of all net cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingasset sales, an amount equal dispositions and involuntary dispositions (provided, that, such net cash proceeds shall not be required to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth below (i) until the aggregate amount of net cash proceeds derived from all such asset sales, dispositions and involuntary dispositions in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year ending December 31is equal to or greater than $10 million, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) if, at the date such financial statements are actually delivered.election
(da) Amounts the aggregate outstanding amount of revolving loans under the Revolving Facility as of such date, plus (b) the aggregate outstanding amount of Letter of Credit obligations as of such date, plus (c) the aggregate outstanding amount of Swingline Loans as of such date, exceeds the amount of the Revolving Facility as of such date, the Borrower shall immediately prepay such revolving loans and such swingline loans and/or shall immediately cash collateralize such Letter of Credit obligations in an aggregate amount equal to such excess; provided, that, the Borrower shall not be applied in connection with prepayments made pursuant required to this Section 2.11 shall be appliedcash collateralize such Letter of Credit obligations unless, first, to after the prepayment of such revolving loans and such swingline loans, the Term Loans in accordance with Section 2.17(b) and, second, to reduce Total Revolving Outstandings exceeds the Swingline Loans and then Revolving Loans without a permanent reduction amount of the Revolving Commitments. The application Facility.
(a) the aggregate outstanding amount of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of revolving loans under the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date Facility as of such prepayment on date, plus (b) the aggregate outstanding amount prepaid.
of Letter of Credit obligations as of such date, plus (ec) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17aggregate outstanding amount of Swingline Loans as of such date, with respect to exceeds the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (the Revolving Facility as of such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstandingdate, the Borrower willshall immediately prepay such revolving loans and such swingline loans and/or shall immediately cash collateralize such Letter of Credit obligations in an aggregate amount equal to such excess; provided, in lieu that, the Borrower shall not be required to cash collateralize such Letter of applying such amount to Credit obligations unless, after the prepayment of Tranche B Term Loanssuch revolving loans and such swingline loans, as provided in Section 2.11(d) above, the Total Revolving Outstandings exceeds the amount of the Revolving Facility.The Revolving Facility and the commitments thereunder shall terminate on the date specified in Section 2.11 for such prepayment, give Maturity Date. The commitments under the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that Term Loan Facility shall terminate upon the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form funding of Exhibit G, and shall include an offer by the Borrower to prepay term loans thereunder on the date (each a “Mandatory Prepayment Closing Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If at any Redeemable Preferred Interests or Debt shall be issued or incurred by time after the Original Closing Date any Group Member (excluding other than Holdings receives any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof from the incurrence of any Indebtedness other than Excluded Indebtedness, the Borrower shall be applied prepay the Term Loans on the date of such issuance receipt in an amount equal to the lesser of 100% of such Net Cash Proceeds (excluding Net Cash Proceeds received from the incurrence of any such Indebtedness to the extent used within 90 days thereafter to finance a Permitted Acquisition or incurrence toward to acquire or repair fixed or capital assets useful in its business) and the prepayment amount of the outstanding Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(b) If on at any time after the Original Closing Date Holdings or any Parent receives any Net Cash Proceeds from the issuance and sale of any Capital Stock or any equity contribution (excluding (i) proceeds from Capital Stock of Holdings or any Parent issued to employees or directors of any Parent, Holdings, the Borrower or any of the Borrower’s Subsidiaries pursuant to employee benefit plans, employment arrangements or director arrangements, (ii) any capital contribution to the extent made by Holdings or another Subsidiary of Holdings (it being understood and agreed that in no event shall this clause (ii) exclude any proceeds received by Holdings from any capital contribution to it or any issuance of its equity), (iii) proceeds received from the equity financing referred to in paragraph 5 of the Closing Certificate of the Borrower, (iv) proceeds received by Holdings or any Parent after the Original Closing Date from issuances of its equity to, or contributions received from, any Parent or any Permitted Investors or Permitted Transferees and (v) proceeds received by Holdings or any Parent after the Original Closing Date from issuances of its equity or contributions to the extent used within 90 days thereafter to finance a Permitted Acquisition), the Borrower shall prepay the Term Loans within 90 days after the date of such receipt in an amount equal to the lesser of 50% of such Net Cash Proceeds and the amount of the outstanding Term Loans.
(c) If at any time after the Original Closing Date any Group Member shall receive receives any Net Cash Proceeds from any Asset Sale or Recovery Event in an amount exceeding $2,500,000 in any fiscal year, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, the Borrower shall prepay the Term Loans on the third Business Day following the date of such receipt in an amount equal to the lesser of 100% of such Net Cash Proceeds shall be applied within ten days after to the date that all post-closing adjustments associated therewith have been completed toward extent exceeding $2,500,000 in any fiscal year and the prepayment amount of the outstanding Term Loans and the Revolving Loans as set forth Loans. If a Reinvestment Notice has been delivered in Section 2.11(d); provided thatrespect of any Asset Sale or Recovery Event, notwithstanding the foregoing, then on each Reinvestment Prepayment DateDate relating thereto, the Borrower shall prepay the Term Loans in an amount equal to the lesser of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward and the prepayment amount of the outstanding Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(cd) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending on or about December 31, 20112007, there shall be is any Excess Cash Flow, the Borrower shall, on shall prepay the relevant Excess Cash Flow Application Date, apply Term Loans in an amount equal to the lesser of the ECF Percentage of such Excess Cash Flow toward on or before the prepayment 105th day following the end of such fiscal year and the amount of the outstanding Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredLoans.
(de) Amounts to Mandatory prepayments of Term Loans shall be applied in connection with prepayments made pursuant first to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Base Rate Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything . Each such prepayment shall be credited ratably to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisremaining installments.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued issued, or incurred Indebtedness incurred, by the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness permitted to be incurred after the Closing Date in accordance with Section 7.2 or Capital Stock issued as set forth in compliance with this Agreement on the Closing Date (other than Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2(f)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied then on the date of such issuance or incurrence toward incurrence, the prepayment of Term Loan Commitments shall be reduced and the Term Loans and Revolving Credit Loans shall be prepaid, by an aggregate amount equal to the Revolving Loans amount of the Net Cash Proceeds of such issuance or incurrence, as set forth in Section 2.11(d2.10(c). The provisions of this Section do not constitute a consent to the issuance of any equity securities by any entity whose equity securities are pledged pursuant to the Guarantee and Pledge Agreement, or a consent to the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale Sale, Purchase Price Refund or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof and no Default or Event of Default has occurred and is continuing, on the date of receipt by the Borrower or such Subsidiary of such Net Cash Proceeds Proceeds, the Term Loan Commitments shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of reduced and the Term Loans and Revolving Credit Loans shall be prepaid, by an aggregate amount equal to the Revolving Loans amount of such Net Cash Proceeds, as set forth in Section 2.11(d2.10(c); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales, Purchase Price Refunds and Recovery Events that may be excluded from the foregoing requirement pursuant to Reinvestment Notices shall not exceed $25,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, Date the Term Loan Commitments shall be reduced and the Term Loans and Revolving Credit Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Event, as set forth in Section 2.11(d2.10(c). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, unless the Term Loan Commitments have been terminated in full or been fully drawn, to reduce permanently the Available Term Loan Commitments then in effect (without a corresponding prepayment of the Term Loans), second, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) aboveand third, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause Revolving Credit Loans (ii), any portion without a corresponding reduction of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisRevolving Credit Commitments).
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by the Borrower or any of its subsidiaries in connection the other Loan Parties (excluding any Indebtedness permitted by Section 7.2 (other than with a Permitted Receivables Financingrespect to subsection (i) thereof)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date within one Business Day of receipt by such Person of such issuance or incurrence Net Cash Proceeds toward the prepayment of the Term Loans and the Revolving Loans as set forth Obligations in accordance with Section 2.11(d2.12(g).
(bi) If on any date any Group Member shall receive With respect to the Net Cash Proceeds from any Asset Sale as to which the Borrower or Recovery Event then, to the extent any other Loan Party making such Asset Sale has not delivered a Reinvestment Notice shall not have been delivered within the period required therefor in respect the definition thereof, the Facility Proportionate Share of such Net Cash Proceeds (or portion thereof not subject to such a Reinvestment Notice) shall be applied applied, within ten days after two Business Days of the date that all post-closing adjustments associated therewith have been completed expiration of the aforesaid required period for delivery of a Reinvestment Notice with respect to such Asset Sale, toward the prepayment of the Term Loans and the Revolving Loans as set forth Obligations in accordance with Section 2.11(d2.12(g); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any Fiscal Year and (ii) on each Reinvestment Prepayment Date, an amount equal to the Facility Proportionate Share of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans Obligations in accordance with Section 2.12(g).
(ii) With respect to the Net Cash Proceeds from any Disposition of Property (other than any Asset Sale with respect to which a prepayment is required to be made pursuant to Section 2.12(b)(i)) that are required pursuant to the terms of any First Lien Secured Obligations to be applied to (or offered to be applied to) the repayment of any First Lien Secured Obligations (in the event any such repaid First Lien Secured Obligations constitute a revolving credit facility, accompanied by a permanent reduction of commitments under such revolving credit facility in the amount of such repayment), the Facility Proportionate Share of such Net Cash Proceeds shall be applied, within one Business Day of the date any of such Net Cash Proceeds are required to be so applied (or offered to be so applied) to any First Lien Secured Indebtedness, toward the prepayment of the Obligations in accordance with Section 2.12(g).
(iii) In the event any Net Cash Proceeds from any Asset Sale are not applied toward the prepayment of the Obligations pursuant to Section 2.12(b)(i) as a result of not being deemed part of the "Facility Proportionate Share" of such Net Cash Proceeds and such amounts are not applied to the Revolving Loans as set forth prepayment and permanent reduction of First Lien Secured Obligations for any reason whatsoever (including the failure of any holder of such First Lien Secured Obligations to accept an offer of prepayment) within 60 days of the application of the Facility Proportionate Share of such Net Cash Proceeds toward the prepayment of the Obligations pursuant to Section 2.12(b)(i), then such amounts shall, on the last day of such 60-day period, be applied toward the prepayment of the Obligations in accordance with Section 2.11(d2.12(g).
(c) No later than (i) two Business Days following the date on which Loss Proceeds are required to be applied to the prepayment of Obligations under Section 5.14 of the Disbursement Agreement, (ii) two Business Days following the date on which Insurance Proceeds and/or Eminent Domain Proceeds are required to be applied to the prepayment of the Obligations pursuant to Section 2.24 or (iii) unless the Disbursement Agreement provides for the deposit of such funds in the Company's Funds Account (in which case the Disbursement Agreement shall control), two Business Days following the date on which any Loan Party receives Liquidated Damages (provided, that to the extent such Liquidated Damages are paid pursuant to any obligation, default or breach, the results of which can be remedied through the expenditure of money, and the applicable Loan Party determines in its reasonable judgment to undertake such remedy, the Liquidated Damages subject to this subsection (iii) shall be net of reasonable amounts that such Loan Party anticipates to incur in connection with such remedy (such amounts, the "Reinvested Amounts"); provided, further, that in the event such Loan Party has not expended any Reinvested Amounts in furtherance of such remedy by the date that is six months after a Loan Party initially received the relevant Liquidated Damages or, in the case of any Reinvested Amounts to be expended in furtherance of such remedy pursuant to a contract entered into during such six-month period, such amounts have not been expended by the date that is twelve months after a Loan Party initially received the relevant Liquidated Damages, such non-expended amounts shall be applied on the second Business Day following such sixth-month or twelve-month, as the case may be, anniversary date toward the prepayment of the Obligations in accordance with Section 2.12(g)), the Borrower shall apply such funds toward the prepayment of the Obligations in accordance with Section 2.12(g).
(d) If, for any Fiscal Year of the Borrower commencing with the Relevant Fiscal Year ending December 31, 2011Year, there shall be Excess Cash Flow, the Borrower shall, and shall cause the applicable Loan Parties to, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth Obligations in accordance with Section 2.11(d2.12(g). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower Loan Parties referred to in Section 6.1(b6.1(a), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(de) Amounts If the Phase II Approval Date has not occurred on or prior to the Phase II Commitment Sunset Date, on the Phase II Commitment Sunset Date the Borrower shall prepay the Obligations in accordance with Section 2.12(g) in an aggregate principal amount of $550,000,000.
(f) If, on the last day of any period of two full consecutive fiscal quarters of the Borrower, each such fiscal quarter beginning after the Phase I Opening Date but in no event such day being earlier than the later of (x) the Phase I Final Completion Date and (y) December 31, 2005, the Consolidated EBITDA of the Borrower for such two full consecutive fiscal quarter period was equal to or greater than $70,000,000 the Borrower shall, so long as no Default or Event of Default shall have occurred and be then continuing, apply any amounts then on deposit in the Project Liquidity Reserve Account on the Liquidity Reserve Payment Date toward the prepayment of the Obligations in accordance with Section 2.12(g).
(g) Subject to Section 2.18, amounts to be applied in connection with prepayments made to the prepayment of the Obligations pursuant to this Section 2.11 2.12 shall be appliedapplied (i) in the case of Sections 2.12(a), 2.12(b), 2.12(c) and 2.12(d), first, to the prepayment of the Term Loans in accordance with Section 2.17(b) andLoans, second, to reduce permanently the Swingline Revolving Credit Commitments and, third, to the Borrower or such other Person as shall be lawfully entitled thereto, (ii) in the case of Sections 2.12(e), to the prepayment of the Term Loans and then to reduce permanently the Revolving Credit Commitments in such respective amounts as the Borrower may elect and (iii) in the case of Section 2.12(f), first, to the prepayment of Revolving Credit Loans (without a any permanent reduction of Revolving Credit Commitments), second, to the prepayment of Term Loans, and third, to the Borrower or such other Person as shall be lawfully entitled thereto. Any reduction of the Revolving CommitmentsCredit Commitments in accordance with the foregoing shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account established with the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing first priority security interest (subject to no other Liens) in all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such cash collateral account are subject to any right or claim of any Person other than the Administrative Agent and the Secured Parties or that the total amount of such funds is less than the amount of such excess, the Borrower shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in such cash collateral account, an amount equal to the excess of (a) the amount of such excess over (b) the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be free and clear of any such right and claim. The application of any prepayment pursuant to Section 2.11 and this Section 2.11 2.12 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and this Section 2.11 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member Within ten (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 710) or any initial cash proceeds that are related to a financing days of a fixed principal amount the date of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received receipt by Borrower or any of its subsidiaries Subsidiaries of any Net Cash Proceeds, Borrower shall make a mandatory prepayment, without premium or penalty (other than costs required to be paid pursuant to Section 2.17(d)), of, first, the Term Advances and, second, after payment in connection with a Permitted Receivables Financingfull of the Term Advances, the outstanding Revolving Advances or, to the extent that at such time no Revolving Advances are outstanding, shall cash collateralize any outstanding Letters of Credit, in an amount equal to 100% of the such Net Cash Proceeds thereof Proceeds. In the event a mandatory prepayment of Revolving Advances or cash collateralization of Letters of Credit is required to be made under this Section 2.13(a), the Revolving Credit Commitment Amount shall be applied on permanently reduced immediately by the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)amount thereof.
(b) If at any time (A) the sum of the aggregate principal amount of the outstanding Revolving Advances plus the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate amount of all unreimbursed drawings under Letters of Credit shall exceed (B) the Revolving Credit Commitment Amount, Borrower shall, without demand or notice, prepay Revolving Advances or cash collateralize or replace Letters of Credit in such amount as may be necessary to eliminate such excess, and Borrower shall take such action on the Banking Day on which Borrower learns or is notified of the excess, if Borrower so learns or is so notified prior to 1:00 p.m. (New York City time) on such day, and otherwise on the immediately succeeding Banking Day. Notwithstanding any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thencontrary provision contained herein, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans any Advance or cash collateralization or replacement of any Letter of Credit hereunder (including, without limitation, pursuant to this Section 2.13 or Section 2.11) as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward a result of the prepayment of Term Advances or the Term Loans and termination or permanent reduction of the Revolving Loans as set forth in Section 2.11(d)Credit Commitment Amount or the L/C Commitment Amount, shall be accompanied by the payment of accrued interest on the amount prepaid to the date of payment.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with Any prepayments made pursuant to this Section 2.11 2.13 shall be applied, first, applied first to Reference Rate Advances to the prepayment extent then outstanding and then to Eurodollar Rate Advances to the extent then outstanding, subject to Section 2.17(d). Any prepayments of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment Advances made pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount 2.13 shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisremaining installments in reverse chronological order.
Appears in 1 contract
Sources: Credit Agreement (Bally Total Fitness Holding Corp)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by the Company or any Group Member Subsidiary (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.03), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(b) If on any date the Company or any Group Member Subsidiary shall receive Net Cash Proceeds from any Asset Sale single Disposition or Recovery Event Event, or series of related Disposition or Recovery Events, exceeding $10,000,000 in the aggregate, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(c) If, for any Fiscal Year fiscal year of the Borrower Company commencing with the Fiscal Year fiscal year ending December March 31, 2011, 2018 there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application DateDate (defined below), apply an amount, equal to (x) the ECF Percentage of such Excess Cash Flow for such fiscal year minus (y) optional prepayment of the Loans (except prepayments of Revolving Loans that are not accompanied by a corresponding permanent reduction of Revolving Commitments) pursuant to Section 2.10(a) other than to the extent that any such prepayment is funded with the proceeds of Funded Debt, shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower Company referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Eurocurrency Rate Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Capital Stock shall be issued (excluding Capital Stock of Holdings issued to Persons who are Permitted Investors, provided that prior to and after giving effect to the proposed issuance, no Default or incurred Event of Default shall have occurred and be continuing), or Indebtedness incurred, by Holdings, the Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued 6.2 as in compliance with Section 7) or any initial cash proceeds that are related to a financing effect on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthis Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, an amount equal to such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans.
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111999, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)Loans. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b5.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Each mandatory prepayment required by this Section shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities and may not be reborrowed. Amounts to be applied in 29 connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Term Loan Agreement (B&g Foods Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by the Borrower or any Group Member of the other Loan Parties (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance (other than with Section 7respect to subsection (i) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthereof)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(g).
(b) If on any date any Group Member shall receive With respect to the Net Cash Proceeds from any Asset Sale as to which the Borrower or Recovery Event then, to the extent any other Loan Party making such Asset Sale has not delivered a Reinvestment Notice shall not have been delivered in respect thereof, within the period required therefor such Net Cash Proceeds (or portion thereof not subject to such a Reinvestment Notice) shall be applied applied, within ten days after one Business Day of the expiration of the aforesaid required period for delivery of a Reinvestment Notice with respect to such Asset Sale, on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(g); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any Fiscal Year and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d2.12(g).
(c) No later than (i) the Business Day following the date on which funds, whether representing the proceeds of Loans or otherwise, are returned or distributed to the Administrative Agent on behalf of Lenders under the Disbursement Agreement (whether pursuant to Section 2.10 thereof or otherwise), (ii) the Business Day following the date on which Loss Proceeds are required to be applied to the prepayment of Loans under Section 5.21 of the Disbursement Agreement, (iii) the Business Day following the date on which Insurance Proceeds or Eminent Domain Proceeds are required to be applied to the prepayment of Loans pursuant to Section 2.24(f), (iv) the Business Day following the date on which any Loan Party receives Liquidated Damages (provided, that to the extent such Liquidated Damages are paid pursuant to any obligation, default or breach, the results of which can be remedied through the expenditure of money, and the applicable Loan Party determines in its reasonable judgment to undertake such remedy, the Liquidated Damages subject to this subsection (iv) shall be net of reasonable amounts that such Loan Party anticipates to incur in connection with such remedy (such amounts, the "Reinvested Amounts"); provided, further, that in the event such Loan Party has not expended, any Reinvested Amounts in furtherance of such remedy by the date that is six months after a Loan Party initially received the relevant Liquidated Damages or, in the case of any Reinvested Amounts to be expended in furtherance of such remedy pursuant to a contract entered into during such six-month period, such amounts have not been expended by the date that is twelve months after a Loan Party initially received the relevant Liquidated Damages, such non-expended amounts shall be applied on the secured Business Day following such sixth-month or twelve-month, as the case may be, anniversary date to the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(g)(ii)), (v) the Business Day following the date on which amounts related to the initial working capital for the Project under Sections 2.9(e) and 2.11 of the Disbursement Agreement are required to be applied to the prepayment of Loans or (vi) the Business Day following the date on which Insurance Proceeds or Eminent Domain Proceeds are required to be applied to the prepayment of Loans pursuant to Section 2.24(a) or 2.24(h), the Borrower shall prepay and the Administrative Agent shall apply such funds toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments (or with respect to subsections (c)(i), (c)(iii) and (c)(v) above, prepayment of the Revolving Credit Loans (without any permanent reduction of Revolving Credit Commitments)), in each case as set forth in Section 2.12(g).
(d) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011in which the Completion Date occurs, there shall be Excess Cash Flow, the Borrower shall, and shall cause the applicable Loan Parties to, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d2.12(g). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower Loan Parties referred to in Section 6.1(b6.1(a), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered. Notwithstanding the foregoing, the requirements of this subsection (d) shall be terminated and no longer be applicable if for any Fiscal Year the Consolidated Leverage Ratio of the Borrower as of the last day of such Fiscal Year is not greater than 2.5 to 1.0.
(de) Amounts If, on any date after Loans have been made hereunder, the Borrower or any other Loan Party shall receive any Extraordinary Deposit Receipts, the Borrower or such Loan Party shall apply, on such date, the amount of such Extraordinary Deposit Receipts toward the prepayment of Revolving Credit Loans (without any permanent reduction of the Revolving Credit Commitments) and the Term Loans as set forth in Section 2.12(g).
(f) If on the last day of any period of four full consecutive fiscal quarters of the Borrower ending on a Quarterly Date the Consolidated EBITDA of the Borrower for such four full consecutive fiscal quarter period was equal to or greater than $275,000,000, the Borrower shall apply any amounts on deposit in the Project Liquidity Reserve Account on the Liquidity Reserve Payment Date toward the prepayment of the Revolving Credit Loans (without any permanent reduction of Revolving Credit Commitments) and the Term Loans as set forth in Section 2.12(g).
(g) Subject to Section 2.18, amounts to be applied in connection with prepayments and/or Commitment reductions made pursuant to this Section 2.11 2.12 or Section 7.2(i) shall be appliedapplied (i) in the case of Sections 2.12(a), 2.12(b) or 7.2(i), first, to the prepayment of Term Loans and the permanent reduction of Revolving Credit Commitments pro rata based on the Total Revolving Credit Exposure and the Total Term Loan Exposure, and second, to the Borrower or such other Person as shall be lawfully entitled thereto, (ii) in the case of Sections 2.12(c)(ii), 2.12(c)(iv), 2.12(c)(vi) and 2.12(d), first, to the prepayment of the Term Loans in accordance with Section 2.17(b) andLoans, second, to reduce permanently the Swingline Revolving Credit Commitments and, third, to the Borrower or such other Person as shall be lawfully entitled thereto and (iii) in the case of Sections 2.12(c)(i), 2.12(c)(iii), 2.12(c)(v), 2.12(e) and 2.12(f), first, to the prepayment of Revolving Credit Loans (without any permanent reduction of Revolving Credit Commitments), second, to the prepayment of Term Loans, and then third, to the Borrower or such other Person as shall be lawfully entitled thereto (provided, that in the case of subsections (i) and (ii) above, prior to the Completion Date, no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans made on the effective date thereof, the Remaining Costs shall exceed the Available Funds or the Required Minimum Contingency shall exceed the Unallocated Contingency Balance; provided, further, that, in such event, amounts allocable to the termination or reduction of Revolving Credit Commitments that are not so applied due to the first proviso hereof shall nonetheless be applied to prepay Revolving Credit Loans (without a any permanent reduction of Revolving Credit Commitments)). Any reduction of the Revolving CommitmentsCredit Commitments in accordance with the foregoing shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account established with the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing first priority security interest (subject to no other Liens other than Liens permitted pursuant to Section 7.3(k) in all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such cash collateral account are subject to any right or claim of any Person other than the Administrative Agent, the Secured Parties and as otherwise permitted pursuant to Section 7.3(k) or that the total amount of such funds is less than the amount of such excess, the Borrower shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in such cash collateral account, an amount equal to the excess of (a) the amount of such excess over (b) the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be free and clear of any such right and claim. The application of any prepayment pursuant to Section 2.11 and this Section 2.11 2.12 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and this Section 2.11 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ABR Base Rate Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) [Reserved].
(b) If any Redeemable Preferred Interests or Debt Indebtedness (other than any Indebtedness incurred in accordance with Section 7.2) shall be issued or incurred by any Group Member (excluding other than any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingUnrestricted Subsidiary), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)2.11(g) not later than the Business Day following receipt of such Net Cash Proceeds.
(bc) If on during any date any Group Member fiscal year of Holdings one or more Loan Parties shall receive Net Cash Proceeds from any Asset Sale or Sales and Recovery Event thenEvents aggregating in excess of $100,000, to the extent then unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds in excess of said $100,000 amount shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)2.11(g) not later than the Business Day following receipt of such Net Cash Proceeds; provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward as set forth in Section 2.11(g).
(d) Within 120 days after the end of each fiscal year of Holdings, commencing with the fiscal year ending December 31, 2020, the Borrower shall prepay the Obligations in accordance with Section 2.11(g) in an aggregate amount equal to the following percentages of Excess Cash Flow for such preceding fiscal year as applicable: 50% with respect to each fiscal year; provided, however, that any mandatory prepayment pursuant to this Section 2.11(d) may be waived with the written consent of all Lenders. Any voluntary prepayments made in respect of the Term Loans and the Revolving Loans (but only to the extent that the Revolving Commitments are permanently reduced by the amount of such payments in accordance with Section 2.9 hereof) during the applicable period shall be treated as a credit against any Excess Cash Flow mandatory prepayment that would otherwise be required to be made pursuant to this Section 2.11(d) with respect to such period. Any prepayment pursuant to this Section 2.11(d) shall be applied as set forth in Section 2.11(d)2.11(g) below.
(ce) If, for any Fiscal Year Not later than the first Business Day following the date of receipt by the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flowof any proceeds of any Specified Equity Contribution pursuant to Section 7.1(c), the Borrower shall, on shall prepay the relevant Excess Cash Flow Application Date, apply the ECF Percentage outstanding Obligations in an aggregate amount equal to 100% of such Excess Cash Flow toward the prepayment proceeds. The proceeds of the Term Loans and the reduction of the Revolving Commitments any such Specified Equity Contribution shall be applied as set forth in Section 2.11(d2.11(g). Each .
(f) If for any reason the Revolving Extensions of Credit at any time exceed the aggregate Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans or any Swingline Loans then outstanding in an aggregate amount equal to such prepayment and commitment reduction excess.
(g) All amounts required to be prepaid pursuant to this Section 2.11 shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of applied as follows:
(i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered all amounts prepaid pursuant to the Administrative Agent foregoing subsections (for distribution to the Agents and the Lendersb), (c) and (e), first to the Term Loans, in inverse order of maturity (including the final payment due on the Term Loan Maturity Date), then (after the Term Loans have been paid in full) to the Swingline Loans, and then (after the Swingline Loans have been paid in full) to the Revolving Loans (but without a corresponding reduction in the aggregate Revolving Commitments then in effect);
(ii) with respect to all amounts prepaid pursuant to the foregoing subsection (d), first to the Term Loans, pro rata across remaining amortization payments (including the final payment due on the Term Loan Maturity Date), then (after the Term Loans have been paid in full) to the Swingline Loans, and then (after the Swingline Loans have been paid in full) to the Revolving Loans (but without a corresponding reduction in the aggregate Revolving Commitments then in effect); and
(iii) with respect to all amounts prepaid pursuant to the foregoing subsection (f), first to the Swingline Loans, and then (after the Swingline Loans have been paid in full) to the Revolving Loans. Within the parameters of the applications set forth above, prepayments shall be applied first to ABR Loans and then to EurodollarSOFR Loans. All prepayments under this Section 2.11 shall be subject to Section 2.20, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment. Notwithstanding anything in this Section 2.11 to the contrary, amounts received from any Loan Party that is not a Qualified ECP Guarantor shall not be applied to any Excluded Swap Obligation of such financial statements are actually deliveredLoan Party.
(dh) Amounts to be applied in connection with prepayments Each prepayment made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to a certificate of a Responsible Officer in reasonable detail setting forth the date calculation of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If Unless ----------------------------------------------- the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower the Company or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided that no such prepayment and reduction shall be -------- required pursuant to this Section 2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2 and (iv) up to $10,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by the Borrower after the Closing Date.
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided provided, -------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111998, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash ----------- Flow Application Date”") no later than five days after the earlier of (i) the --------------------- date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to ----- the prepayment of the Term Loans in accordance with Section 2.17(b(pro rata among the Tranche A Term Loans and --- ---- the Tranche B Term Loans based upon the outstanding principal amount thereof) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such ------ reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate -------- principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The Subject to the immediately preceding sentence, the application of any prepayment pursuant to this Section 2.11 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans and Swingline Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in provisions of Section 2.11(d) or 2.17), with respect to the amount 50% of any mandatory prepayment described in Section 2.11 that is allocated Excess Note Proceeds shall be applied to Tranche B Term Loans (such amount, prepay the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, and 50% of any Excess Note Proceeds shall be applied to prepay the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for with such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion prepayment of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as Term Loans being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay applied ratably to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which remaining installments thereof and with such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant Loans being applied to clause (ii), any portion of the Tranche B Prepayment Amount not accepted prepay each installment thereof which is due on a date occurring during a period set forth below by the Tranche B Term Lenders shall remainpercentage of such Excess Note Proceeds set forth opposite such period: Period Percentage ------- ---------- September 30, such amount 1998 through September 29, 1999 7.50% September 30, 1999 through September 29, 2000 6.25% September 30, 2000 through September 29, 2002 3.75% September 30, 2002 and thereafter 2.50%
(f) All unpaid amounts owing hereunder shall be used to prepay the Tranche B Term Loans due and payable on a pro rata basis.October 27,
Appears in 1 contract
Sources: Credit Agreement (Details Inc)
Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower Holdings or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries (excluding any Indebtedness permitted by Section 10.2), then, on the date of such incurrence the Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments shall be reduced, by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans incurrence, as set forth in Section 2.11(d6.5(d).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, the Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments shall be reduced, on or before the date which is thirty days following the date of receipt of such Net Cash Proceeds shall be applied within ten days after Proceeds, by an amount equal to the date that all post-closing adjustments associated therewith have been completed toward the prepayment amount of the Term Loans and the Revolving Loans such Net Cash Proceeds, as set forth in Section 2.11(d6.5(d); provided PROVIDED, that, notwithstanding the foregoing, (i) the aggregate amount of Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of Holdings and (ii) on each Reinvestment Prepayment DateDate the Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans Event, as set forth in Section 2.11(d6.5(d).
(c) IfSubject to the last sentence of this paragraph, unless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower Holdings commencing with the Fiscal Year fiscal year ending December 31, 20112003, there shall be Excess Cash Flow, the Borrower shallthen, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments shall be reduced, by an amount equal to 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments Flow, as set forth in Section 2.11(d6.5(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”"EXCESS CASH FLOW APPLICATION DATE") no later than five ten days after the earlier of (i) the date on which the financial statements of the Borrower Holdings referred to in Section 6.1(b)9.1, for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered. No prepayment shall be required pursuant to this paragraph (c) in respect of any fiscal year if the Consolidated Leverage Ratio at the end of such fiscal year was less than or equal to 2.5 to 1.0.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, firstFIRST, to the prepayment of the Tranche B Term Loans in accordance with Section 2.17(b) and, secondSECOND, after the Tranche B Term Loans have been prepaid in full, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Multicurrency Commitments; PROVIDED, that the Multicurrency Commitments shall not be so reduced to an amount less than the amount of the L/C Commitment. Any such reduction of the Revolving CommitmentsMulticurrency Commitments shall be accompanied by prepayment of the Multicurrency Loans to the extent, if any, that the Total Multicurrency Extensions of Credit exceed the amount of the Total Multicurrency Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Multicurrency Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the relevant Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment of Loans under any Facility pursuant to this Section 2.11 shall be made, first, to ABR Base Rate Loans under such Facility and, second, to Eurodollar LoansEurocurrency Loans under such Facility. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Multicurrency Loans that are ABR Loans and Swingline Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Six Flags Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member Within ten (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 710) or any initial cash proceeds that are related to a financing days of a fixed principal amount the date of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received receipt by Borrower or any of its subsidiaries Subsidiaries of any Net Cash Proceeds of Sale, Borrower shall make a mandatory prepayment, without premium or penalty (other than costs required to be paid pursuant to Section 2.13(d)), of the outstanding Advances or, to the extent that at such time no Advances are outstanding, shall cash collateralize any outstanding Letters of Credit, in connection with a Permitted Receivables Financing, an amount equal to 100% of the such Net Cash Proceeds thereof of Sale. In the event a mandatory prepayment or cash collateralization is required to be made under this Section 2.08(a), the Commitment Amount shall be applied on permanently reduced immediately by the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)amount thereof.
(b) If at any time (A) the sum of the aggregate principal amount of the outstanding Advances plus the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate amount of all unreimbursed drawings under Letters of Credit shall exceed (B) the excess of Commitment Amount over the Reinvestment Proceeds Amount, Borrower shall, without demand or notice, prepay Advances or cash collateralize or replace Letters of Credit in such amount as may be necessary to eliminate such excess, and Borrower shall take such action on the Banking Day on which Borrower learns or is notified of the excess, if Borrower so learns or is so notified prior to 1:00 p.m. (New York City time) on such day, and otherwise on the immediately succeeding Banking Day. Notwithstanding any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thencontrary provision contained herein, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of any Advance or cash collateralization or replacement of any Letter of Credit hereunder (including, without limitation, pursuant to this Section 2.08 or Section 2.10) as a result of the Term Loans and termination or permanent reduction of the Commitment Amount, the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding Credit Commitment Amount or the foregoing, L/C Commitment Amount shall be accompanied by the payment of accrued interest on each Reinvestment Prepayment Date, an the amount equal prepaid to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment date of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)payment.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with Any prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount 2.08 shall be applied first to Reference Rate Advances to the prepayment of extent then outstanding and then to Eurodollar Rate Advances to the Tranche A Term Loans; provided that if after the application of amounts pursuant extent then outstanding, subject to clause (iiSection 2.13(d), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Bally Total Fitness Holding Corp)
Mandatory Prepayments and Commitment Reductions. (a) If If, as at any Redeemable Preferred Interests or Debt Report Date, the Total Aggregate Exposure exceeds the Borrowing Base as at such date, the Borrower shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% on the last day of the Net Cash Proceeds thereof shall be applied on the date of Interest Period including such issuance or incurrence toward the prepayment of the Term Loans and Report Date prepay the Revolving Loans in such amount as set forth in Section 2.11(d)shall allow the Total Aggregate Exposure not to exceed the Borrowing Base.
(b) If All proceeds received with respect to the Key Man Insurance shall be deposited in the Restricted Account and, on any the earlier of the last day of the Interest Period during which such proceeds were received or, at the election of the Borrower, on a date any Group Member specified by the Borrower by notice delivered to the Administrative Agent at least three Business Days prior to such date, such proceeds shall receive be applied (together with interest accrued thereon pursuant to Section 6(a)(iii) of the Guarantee and Collateral Agreement), to the prepayment of the Revolving Loans. Any prepayment of the Revolving Loans pursuant to this Section 2.9(b) shall permanently reduce the Total Revolving Commitments by the amount of such prepayment.
(c) All Net Cash Proceeds received from any Asset Sale or Recovery Event thenshall be deposited in the Restricted Account and, to on the extent a Reinvestment Notice shall not have been delivered in respect thereof, earlier of the last day of the Interest Period during which such Net Cash Proceeds were received or, at the election of the Borrower, on a date specified by the Borrower by notice delivered to the Administrative Agent at least three Business Days prior to such date, shall be applied within ten days after (together with interest accrued thereon pursuant to Section 6(a)(iii) of the date that all post-closing adjustments associated therewith have been completed toward Guarantee and Collateral Agreement) to the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Loans; provided provided, that, notwithstanding the foregoing, any such prepayment may be deferred until the aggregate Net Cash Proceeds of Recovery Events theretofore received (and as to which no prepayment has been made) exceeds $250,000.
(d) If, as at any date on each Reinvestment Prepayment Datewhich the Borrowing Base Value of an Aircraft Asset is reduced pursuant to the proviso to Section 3.2(h), the Total Aggregate Exposure exceeds the Borrowing Base as at such date, the Borrower shall, within five Business Days of such date deposit in the Restricted Account an amount equal to the Reinvestment Prepayment Amount with respect to difference between the relevant Reinvestment Event shall be applied toward the prepayment Borrowing Base Value as of the Term Loans such date and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shallTotal Aggregate Exposure at that date and, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment earlier of the Term Loans and the reduction last day of the Revolving Commitments as set forth in Section 2.11(d). Each Interest Period during which such prepayment and commitment reduction shall be deposit was made or, at the election of the Borrower, on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of specified by the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be by notice delivered to the Administrative Agent (for distribution at least three Business Days prior to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to date, shall be applied in connection (together with prepayments made interest accrued thereon pursuant to this Section 2.11 shall be applied, first, 6(a)(iii) of the Guarantee and Collateral Agreement) to the prepayment of the Term Loans in accordance with Section 2.17(bRevolving Loans.
(e) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction Each prepayment of the Revolving Commitments. The application of any prepayment pursuant to Loans under this Section 2.11 2.9 shall be (i) made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR LIBOR Loans and Swingline Loans(ii) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
, together (e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form case of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”LIBOR Loans) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of with amounts payable under Section 2.15 if such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans was made on a pro rata basisdate other than the last day of an Interest Period, but without premium or penalty.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Capital Stock shall be issued by any Group Member (excluding Capital Stock issued to a Loan Party), concurrently with, and as a condition to closing of such transaction, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(g).
(b) If any Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness permitted to be incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related 7.2), concurrently with, and as a condition to a financing closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(g).
(bc) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, concurrently with, and as a condition to closing of such transaction, on such date such Net Cash Proceeds shall be offered to prepay the Canadian Borrower Term Loans and any Delayed Draw Term Loans and applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(g); provided provided, that, notwithstanding the foregoing, (x) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of Holdings and (y) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be offered to prepay the Canadian Borrower Term Loans and any Delayed Draw Term Loans and applied toward the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(g).
(cd) If, for any Fiscal Year fiscal year of the Borrower Holdings commencing with the Fiscal Year fiscal year ending December 31June 30, 20112007, there shall be Excess Cash Flow, the Borrower Borrowers shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)2.11(g) an amount equal to (i) 50% of such Excess Cash Flow minus (ii) to the extent not funded with the proceeds of Indebtedness, (x) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year (or other period) to the extent accompanying permanent optional reductions of the Revolving Commitments in respect of such Revolving Loans and (y) all optional prepayments of the Term Loans during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower Holdings referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(de) If, at any time, the aggregate amount of the Canadian Borrower Revolving Extensions of Credit of the Lenders then outstanding exceeds either (i) the Canadian Borrower Borrowing Base or (ii) the aggregate amount of the Canadian Borrower Revolving Commitments, the Canadian Borrower shall immediately prepay the Canadian Borrower Revolving Loans to the Administrative Agent on behalf of the Canadian Borrower Revolving Lenders in an amount equal to such excess.
(f) If, at any time, the aggregate amount of the US Borrower Revolving Extensions of Credit of the Lenders then outstanding exceeds either (i) the US Borrower Borrowing Base or (ii) the aggregate amount of the US Borrower Revolving Commitments, the US Borrower shall immediately prepay the US Borrower Revolving Loans to the Administrative Agent on behalf of the US Borrower Revolving Lenders in an amount equal to such excess; provided that if the aggregate principal amount of US Borrower Revolving Loans then outstanding is less than the amount of such excess (because US Borrower L/C Obligations constitute a portion thereof), the US Borrower shall, to the extent of the balance of such excess, replace outstanding US Borrower Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the US Borrower Lenders on terms and conditions satisfactory to the Administrative Agent. The US Borrower shall prepay $11,536,350 in aggregate principal amount of Closing Date US Borrower Revolving Loans on the Cleandown Date.
(g) Amounts to be applied in connection with offers to prepay, prepayments and Commitment reductions made pursuant to clauses (a) through (d) of this Section 2.11 shall be applied, first, to the prepayment (or prepayment offer, as applicable) of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Revolving Commitments in accordance with Section 2.17(c); provided that any Term Lender may decline to accept any prepayment amount that would otherwise be required to be applied to prepay the Term Loans in accordance with the foregoing clause first (any such declined prepayments, “Declined Amounts”), and any such Declined Amounts shall be applied to the prepayment, in accordance with Section 2.17(b), of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts (any such Declined Amounts remaining after application in accordance with the foregoing provisions of this proviso may be retained by the applicable Borrower); and provided, further, that notwithstanding the foregoing, if the application provided for in this sentence of any prepayment amounts under Section 2.11(a), (b) or (d) towards the prepayment of the Canadian Borrower Term Loans and then Revolving the Delayed Draw Term Loans without (together with (x) other mandatory prepayments of the Canadian Borrower Term Loans and the Delayed Draw Term Loans made pursuant to Section 2.11(a), (b) or (d) and (y) amortization payments made in respect of the Canadian Borrower Term Loans and the Delayed Draw Term Loans pursuant to Section 2.3) would cause more than 25% of the original outstanding principal amount of any Canadian Borrower Term Loan or any Delayed Draw Term Loan borrowed on any Delayed Draw Date to be repaid on or before the applicable Catch-Up Date, then, solely to the extent necessary to avoid such repayment within such time period, the relevant amount of any prepayment which would have otherwise been allocated to such Canadian Borrower Term Loans or such Delayed Draw Term Loans, as applicable (each, a permanent “Deposited Prepayment Amount”) shall instead be deposited in the Prepayment Collateral Account. Any reduction of the Canadian Borrower Revolving CommitmentsCommitments pursuant to this Section 2.11(g) shall be accompanied by prepayment of the Canadian Borrower Revolving Loans to the extent, if any, that the Total Canadian Borrower Revolving Extensions of Credit exceed the amount of the Total Canadian Borrower Revolving Commitments as so reduced. Any reduction of the US Borrower Revolving Commitments pursuant to this Section 2.11(g) shall be accompanied by prepayment of the US Borrower Revolving Loans and/or Swingline Loans to the extent, if any, that the Total US Borrower Revolving Extensions of Credit exceed the amount of the Total US Borrower Revolving Commitments as so reduced, provided that if the aggregate principal amount of US Borrower Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because US Borrower L/C Obligations constitute a portion thereof), the US Borrower shall, to the extent of the balance of such excess, replace outstanding US Borrower Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the US Borrower Lenders on terms and conditions reasonably satisfactory to the Administrative Agent.
(h) On the first day following the Catch-Up Date with respect to any Canadian Borrower Term Loans or Delayed Draw Term Loans, such Canadian Borrower Term Loans or Delayed Draw Term Loans, as the case may be, shall be prepaid, on a pro rata basis in accordance with Section 2.17(b), in an amount equal to the aggregate of all Deposited Amortization Payment Amounts and Deposited Prepayment Amounts originally deposited in the Prepayment Collateral Account in respect of such Canadian Borrower Term Loans or Delayed Draw Term Loans; provided that the amount of any such prepayment shall be decreased by the amount of any voluntary prepayments of such Canadian Borrower Term Loans or Delayed Draw Term Loans, as the case may be, made with funds held in the Prepayment Collateral Account.
(i) The application of any prepayment of Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmade on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans under any Facility that are ABR Loans (to the extent all Revolving Loans under such Facility are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ej) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with With respect to the amount of any mandatory prepayment Net Cash Proceeds or Reinvestment Prepayment Amount described in Section 2.11 2.11(c) that is allocated to Tranche B Canadian Borrower Term Loans or Delayed Draw Term Loans pursuant to Section 2.17(b) (such amountamounts, the “Tranche B Prepayment AmountOffer Amounts”), at any time when Tranche A Term Loans remain outstanding, the Canadian Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the applicable date specified in Section 2.11 for such prepayment2.11(c), give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that specifying the Administrative Agent prepare Type of each Canadian Borrower Term Loan and Delayed Draw Term Loan being offered to be prepaid and the principal amount of each such Loan (or portion thereof) being offered to be prepaid, and shall provide to each Tranche B Canadian Borrower Term Lender a notice of such prepayment offer (each, a “Prepayment Option Offer Notice”). Each Prepayment Offer Notice shall (i) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 ten Business Days after the date of the Prepayment Option Offer Notice, the relevant Canadian Borrower Term Loans and Delayed Draw Term Loans of such Lender by in an amount equal to the portion of the Tranche B Prepayment Offer Amount indicated in such Lender’s Prepayment Option Offer Notice as being applicable to such Lender’s Tranche B Canadian Borrower Term Loans and Delayed Draw Term Loans, (ii) specify the Type of each Loan being prepaid and (iii) set forth the option of each Canadian Borrower Term Lender to (x) accept or decline such offer or (y) accept Declined Amounts. On Each Canadian Borrower Term Lender shall notify the Administrative Agent no later than 12:00 Noon, New York City time on the Business Day immediately preceding the date on which such prepayment is to be made of its intent to accept such offer for prepayment or decline such offer (and, if such offer is accepted by such Canadian Borrower Term Lender, the amount of Canadian Borrower Term Loans and Delayed Draw Term Loans with respect to which such Canadian Borrower Term Lender shall elect to accept the offer of prepayment and whether such Canadian Borrower Term Lender shall accept Declined Amounts); provided that to the extent any Canadian Borrower Term Lender shall not notify the Administrative Agent by such time, such Canadian Borrower Term Lender shall be deemed to have accepted such offer for prepayment and not elected to accept Declined Amounts. Subject to Section 2.11(i), the Canadian Borrower shall pay the aggregate amount allocated to the Canadian Borrower Term Loans and Delayed Draw Term Loans to the Canadian Borrower Term Lenders that have accepted such offer for prepayment pro rata with respect to each Canadian Borrower Term Lender, according to the amount of Canadian Borrower Term Loans and Delayed Draw Term Loans which such Canadian Borrower Term Lender has elected to have prepaid and the aggregate amount of Canadian Borrower Term Loans and Delayed Draw Term Loans such Lenders have elected to have prepaid. After application of mandatory prepayments of the Canadian Borrower Term Loans and Delayed Draw Term Loans as described above in this Section 2.11(j) and to the extent there are prepayment amounts remaining after such application, an amount equal to the total of such amounts shall be paid first, by the UK Borrower to the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans in accordance with Sections 2.11(g), 2.11(k) and 2.17(b) and, second, by the relevant Borrowers to reduce permanently the Revolving Commitments in accordance with Section 2.17(c).
(k) Holdings shall deliver to the Administrative Agent and each Lender a Notice of Prepayment with respect to each prepayment and/or Commitment reduction required under this Section 2.11 not less than five Business Days prior to the date such prepayment and/or Commitment reduction shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (iii) the Borrower principal amount of each Loan (or portion thereof) to be prepaid and the amount of any Commitment reduction, (iii) the Type of each Loan being prepaid, and (iv) the option of each Term Lender to (x) decline its share of such prepayment or (y) accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall pay notify the Administrative Agent by facsimile transmission not later than 12:00 Noon, New York City time on the Business Day immediately preceding the Mandatory Prepayment Date. Any Term Lender that does not provide written notice of the exercise of any such options on or prior to the relevant Tranche B Term Lenders Business Day prior to the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Mandatory Prepayment Option Notice Date shall be deemed an acceptance to have accepted such prepayment and not elected to accept such Declined Amounts. Holdings shall deliver to the Administrative Agent, at the time of each prepayment or Commitment reduction required under this Section 2.11, a certificate signed by a Responsible Officer of Holdings setting forth in reasonable detail the calculation of the amount of such prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisor Commitment reduction.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than (i) Excluded Indebtedness, (ii) any Debt incurred in accordance with Section 7.2 or Capital Stock issued to any Group Member, (iii) the Designated Acquisition Equity Issuance, (iv) the PAR Capital Equity Issuance, (v) any other Capital Stock issued as consideration in compliance with Section 7order to consummate a Permitted Acquisition and (vi) any issuance of Capital Stock by the Borrower pursuant to its benefit and stock option plans outstanding on the date hereof or adopted in the future and approved by the shareholders of the Borrower) or any initial cash proceeds that are related capital contribution is made to any Group Member (other than a financing of a fixed principal amount of Receivables Assets or capital contribution by any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingGroup Member), an amount equal to 100% the Designated Percentage of the Net Cash Proceeds thereof shall be applied on the date of within five Business Days after such issuance issuance, incurrence or incurrence contribution toward the prepayment of the Term Loans and the Revolving Loans reduction of the Commitments as set forth in Section 2.11(d4.2(d).. Table of Contents
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed toward receipt thereof to the prepayment of the Term Loans and the Revolving Loans reduction of the Commitments as set forth in Section 2.11(d4.2(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward to the prepayment of the Term Loans and the Revolving Loans reduction of the Commitments as set forth in Section 2.11(d4.2(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112008, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d4.2(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 4.2 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) andLoans, and second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 4.2 (except in the case of Revolving Loans that are ABR Base Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Lenders shall otherwise agree, if any Redeemable Preferred Interests Indebtedness shall be Incurred by DDi Corp. or Debt any of its Subsidiaries (excluding DDi Europe), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such Incurrence toward the prepayment of the Term Loans and, prior to the Scheduled Tranche A Revolving Termination Date, the reduction of the Tranche A Revolving Credit Commitments as set forth in Section 2.9(e); provided that no such prepayment and reduction shall be required pursuant to this Section 2.9(a) with respect to Indebtedness Incurred in accordance with Section 7.2, other than to the extent set forth therein.
(b) Unless the Required Lenders shall otherwise agree, if any Capital Stock shall be issued or incurred sold by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower DDi Corp. or any of its subsidiaries in connection with a Permitted Receivables FinancingSubsidiaries (excluding DDi Europe) for cash, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Tranche A Revolving Loans Credit Commitments as set forth in Section 2.11(d2.9(e).
(bc) If Unless the Required Lenders shall otherwise agree, if on any date DDi Corp. or any Group Member of its Subsidiaries (excluding DDi Europe) shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent (unless a Reinvestment Notice shall not have been be delivered in respect thereof) then, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and and, prior to the Scheduled Tranche A Revolving Loans Termination Date, the reduction of the Tranche A Revolving Credit Commitments as set forth in Section 2.11(d2.9(e); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of Details, (ii) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of Details, and (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and and, prior to the Scheduled Tranche A Revolving Loans Termination Date, the reduction of the Tranche A Revolving Credit Commitments as set forth in Section 2.11(d2.9(e), and provided, further, that 100% of the Net Cash Proceeds of the first $1,250,000 of Asset Sales (after giving effect to any Reinvestment Notice in respect of such Asset Sales), which Asset Sales shall in any event include any sale of real or personal property located at the facilities in Garland, Texas and Sterling, Virginia, may be applied by the Borrower to repay Tranche A Revolving Credit Loans only so long as such repayment does not also constitute a permanent reduction of Tranche A Revolving Credit Commitments.
(cd) IfUnless the Required Lenders shall otherwise agree, for if, on December 31 of any Fiscal Year fiscal year of the Borrower Details, commencing with the Fiscal Year ending December 31, 2011fiscal year 2004, there shall be Excess Cash FlowCash, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of prepay the Term Loans and and, prior to the reduction of Scheduled Tranche A Revolving Termination Date, reduce the Tranche A Revolving Credit Commitments as set forth in Section 2.11(d)2.9(e) in an amount equal to the excess, if any, of Excess Cash as at December 31 for such fiscal year over $15,000,000. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after that is the earlier of (i) the date on which the financial statements of the Borrower Details referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered, provided that the Excess Cash Application Date for fiscal year 2004 shall be July 15, 2005.
(de) Amounts Prior to the Scheduled Tranche A Revolving Termination Date, amounts to be applied in connection with mandatory prepayments and Commitment reductions made pursuant to Section 2.9 shall be applied to the prepayment of the Tranche B Term Loans and to reduce permanently the Tranche A Revolving Credit Commitments on a pro rata basis on the outstanding amount thereof. Any such reduction of the Tranche A Revolving Credit Commitments shall be accompanied by prepayment of the Tranche A Revolving Credit Loans to the extent, if any, that the Total Tranche A Revolving Extensions of Credit exceed the amount of the Total Tranche A Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Tranche A Revolving Credit Loans then outstanding is less than the amount of such excess (because Tranche A L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Tranche A Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. On and after the Scheduled Tranche A Revolving Termination Date, amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.9 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) andLoans, second, to reduce the Swingline pro rata among Tranche A Term Loans and then Revolving Loans without a permanent reduction of Tranche B Term Loans, based upon the Revolving Commitmentsoutstanding principal amount thereof. The Subject to the second preceding sentence, the application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.9 (except in the case of Tranche A Revolving Credit Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) All unpaid amounts owing hereunder shall be due and payable on April 15, 2008.
(g) Notwithstanding anything to the contrary in Section 2.11(dSections 2.9(a) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d2.9(b) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date no prepayment of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment or reduction of the Tranche A Term LoansRevolving Credit Commitments shall be required with respect to up to the first $10,000,000 in the aggregate of Net Cash Proceeds of any issuances of equity or Indebtedness of DDi Corp. or the Company (any such issuance, “New Capital”), so long as (i) any such issuance of Indebtedness is subordinated to the Obligations on terms satisfactory to the Administrative Agent and the Required Lenders, (ii) no cash payments are required to made with respect to such New Capital until all Obligations are paid in full, (iii) in the case of any issuance of equity of DDi Corp., the Lenders shall have anti-dilution protection under the Lender Warrant Agreement and (iv) the terms of any such issuance of Indebtedness are otherwise satisfactory to the Administrative Agent and the Required Lenders. All Net Cash Proceeds of issuances of New Capital pursuant to this Section 2.9(g) shall be immediately deposited in Qualified Accounts of the Borrower and its Subsidiaries; provided that if after the application up to $4,000,000 of amounts pursuant such Net Cash Proceeds from any issuance of equity of DDi Corp. may be distributed to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisDDi Europe.
Appears in 1 contract
Sources: Credit Agreement (Ddi Capital Corp/Dynamic Details Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding other than any Debt Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related 7.2), concurrently with, and as a condition to a financing closing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingsuch transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in clause (g) of this Section 2.11(d)2.11.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenSubject to clause (d) of this Section 2.11, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) Ifif, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to the excess of (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined by the actual cash purchase price paid by such Permitted Auction Purchaser for such Purchase and not the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans made by the Borrower (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments ) and (3) voluntary prepayments and repurchases (to the extent of the actual cash purchase price paid for such loan buyback and not the par value) of Indebtedness (other than the Obligations) that are First Lien Obligations, in each case during such Excess Cash Flow Period or following such Excess Cash Flow Period and prior to such Excess Cash Flow Application Date shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in clause (g) of this Section 2.11(d)2.11; provided that no such prepayment shall be required to be made if the payment would be an amount less than $10,000,000. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) ten (10) Business Days after the date on which the financial statements of the Initial Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders or (ii) if such financial statements are actually delivered prior to the date on which they are required to be delivered pursuant to Section 6.1(a), the last Business Day of the calendar month in which such financial statements are actually delivered (but in no event later than the date set forth in clause (i) of this sentence). Any prepayment amounts credited pursuant to clause (ii) against such amount in clause (i) above shall be without duplication of any such credit in any prior period or subsequent period.
(c) Subject to clause (d) of this Section 2.11, if, on any date, the Initial Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of $20,000,000 in any fiscal year, then, unless the Initial Borrower has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to the Asset Sale Percentage of such Net Cash Proceeds shall be applied within five (5) Business Days of such date to prepay (A) outstanding Term Loans in accordance with this Section 2.11 and (B) at the Initial Borrower’s option, outstanding Indebtedness that constitutes First Lien Obligations (collectively, “Other Applicable Indebtedness”); provided that, notwithstanding the foregoing, within five (5) Business Days following each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Loans as set forth in Section 2.11(g). Any such Net Cash Proceeds may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and, in any event, within ten (10) Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding).
(d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Initial Borrower has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, 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 set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Initial Borrower hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law, presenting a material risk as described in clause (ii) above, or incurring material adverse Tax consequences; provided, however, that no such commercially reasonable actions shall be required to be taken later than 12 months after the date on which the proceeds of Term Loans were or would have been required to be prepaid hereunder using the proceeds of the applicable Asset Sale, Recovery Event or Excess Cash Flow), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under such applicable local law or material adverse Tax consequences would no longer result from such repatriation, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.11.
(e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Borrowers shall immediately repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess.
(f) The Borrower Representative shall deliver to the Administrative Agent notice substantially in the form of Exhibit L or such other form as approved by the Administrative Agent of each prepayment required under this Section 2.11 not less than three (for distribution 3) Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the Agents and date such prepayment shall be made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Lenders) Mandatory Prepayment Date and (ii) the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent will promptly notify each applicable Lender of such notice and of each such Lender’s Pro Rata Share of the prepayment. Each such Lender may reject all of its Pro Rata Share of the prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such financial statements are actually deliveredLender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Subject to any requirements of any other Indebtedness, any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, a certificate signed by a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such prepayment.
(dg) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and); provided that at any time after the Term Loans have been repaid or prepaid in full, the provisions of this sentence notwithstanding, any prepayments required by this Section 2.11 shall be applied first, to prepay any outstanding Revolving Loans, and second, to reduce the Swingline Loans and then Revolving Loans Collateralize any outstanding Letters of Credit, in each case, without a permanent any reduction of the Revolving Commitments. The application of any prepayment of Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loansmade on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(eh) Notwithstanding anything any of the other provisions of this Section 2.11, so long as no Default shall have occurred and be continuing, if any prepayment of Eurodollar Loans is required to be made under this Section 2.11 other than on the contrary last day of the Interest Period applicable thereto, the applicable Borrower may, in Section 2.11(d) or 2.17its sole discretion, with respect to deposit the amount of any mandatory such prepayment described in Section 2.11 that is allocated otherwise required to Tranche B Term Loans (be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such amount, prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the “Tranche B Prepayment Amount”)Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any time when Tranche A Term Loans remain outstanding, the further action by or notice to or from any Borrower will, in lieu of applying or any other Loan Party) to apply such amount to the prepayment of Tranche B Term Loans, such Eurodollar Loans in accordance with this Section 2.11 (determined as provided in Section 2.11(d) above, on of the date specified such prepayment was required to be originally made); provided that such unpaid Eurodollar Loans shall continue to bear interest in accordance with Section 2.11 for 2.15 until such prepayment, give unpaid Eurodollar Loans have been prepaid. Upon the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that occurrence and during the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrowercontinuance of any Default, the Administrative Agent will send shall also be authorized (without any further action by or notice to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the or from any Borrower or any other Loan Party) to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and apply such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after applicable Eurodollar Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this subsection (h) pending application to any Eurodollar Loans shall be held and applied to the satisfaction of such Eurodollar Loans prior to any other application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall property as may be used to prepay the Tranche B Term Loans on a pro rata basisprovided for herein.
Appears in 1 contract
Sources: Credit Agreement (Emerald Expositions Events, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by the Parent Borrower or any Group Member of its Subsidiaries (excluding any Debt Indebtedness issued or incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of within five Business Days after such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(ef).
(b) If on any date the Parent Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from (i) any Asset Sale or (ii) any Recovery Event that, in the case of this clause (ii), yields net proceeds to the Parent Borrower or any of its Subsidiaries from any settlement or payment in excess of $10,000,000, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed such receipt toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(ef); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d2.12(ef).
(c) If, If for any Fiscal Year fiscal year of the Parent Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112020, there shall be Excess Cash Flow, the Parent Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d)2.12(ef) an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all optional prepayments of Term Loans made during such fiscal year pursuant to Section 2.11 to the extent not funded with the proceeds of long-term Indebtedness and (B) the aggregate amount of all optional prepayments of Revolving Credit Loans and Swingline Loans made during such fiscal year pursuant to Section 2.11 to the extent (x) not funded with the proceeds of long-term Indebtedness and (y) accompanying corresponding permanent reductions of the Revolving Credit Commitments. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Parent Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts To the extent that at any time (by virtue of changes in the Exchange Rate or otherwise) (i) the Total USD Revolving Extensions of Credit under the USD Revolving Credit Facility or the Total Multicurrency Revolving Extensions of Credit under the Multicurrency Revolving Credit Facility (including the Dollar Equivalent of any such Revolving Extensions of Credit denominated in an Optional Currency) shall exceed the Total Revolving Credit Commitments under such Revolving Credit Facility then in effect or (ii) the aggregate outstanding principal amount of all Revolving Credit Loans to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to Foreign Subsidiary Borrowers (including the prepayment Dollar Equivalent of the Term aggregate outstanding principal amount of all Multicurrency Revolving Credit Loans denominated in accordance with Section 2.17(ban Optional Currency to Foreign Subsidiary Borrowers) andshall exceed $100,000,000, secondthen, to reduce in each case, the Borrowers shall, within four Business Days, repay the Revolving Credit Loans under the applicable Revolving Credit Facility or Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of eliminate such prepayment on the amount prepaidexcess.
(e) Notwithstanding anything With respect to each borrowing as to which a certificate is required to have been delivered under Section 5.2(c), if and to the contrary extent the applicable Borrower has not applied the proceeds of such borrowing for the purpose that has been specified in Section 2.11(d) or 2.17such certificate by the fifth Business Day following the date such borrowing is made, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, then on the date specified next Business Day the applicable Borrower shall prepay such borrowing in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an aggregate principal amount equal to the portion lesser of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) unused proceeds and (ii) the Borrower shall pay amount necessary to cause the Tranche A Term Lenders an aggregate amount of Available Cash to be less than or equal to $75,000,000 at the portion end of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisBusiness Day.
Appears in 1 contract
Sources: Credit Agreement (Conmed Corp)
Mandatory Prepayments and Commitment Reductions. (a) If If, after the Closing Date, any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by the Borrower or any of its subsidiaries in connection with a Permitted Receivables FinancingRestricted Subsidiaries (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof of such incurrence shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.09(b).
(b) If on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale which occurs after the Closing Date or from any Recovery Event which occurs after the Closing Date, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofthereof (the delivery of any Reinvestment Notice being subject to the provisions of Section 8.05(k)), such Net Cash Proceeds shall be applied within ten days three Business Days after the date that all post-closing adjustments associated therewith have been completed receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.09(b); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales which occur after the Closing Date, that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $50,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.09(b).
(c) IfThe Borrower shall, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending fiscal year ended December 31, 2011, there shall be Excess Cash Flow, the Borrower shall2014, on the relevant each Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments Loans, as set forth in Section 2.11(d4.09(b), an amount (which amount shall not be less than zero) equal to (x) the ECF Percentage of Adjusted Excess Cash Flow for the fiscal year minus (y) the aggregate amount of all prepayments of Revolving Loans (other than prepayments funded with proceeds of Indebtedness or the issuance of Capital Stock) during such fiscal year to the extent accompanying permanent optional reductions of the Revolving Commitments minus (z) the aggregate amount of all optional prepayments of Term Loans (other than prepayments funded with proceeds of Indebtedness or the issuance of Capital Stock) during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.01(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 4.03 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans 4.03 shall be subject to Section 4.12 and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to The Borrower shall notify the contrary Administrative Agent in Section 2.11(d) or 2.17, with respect to the amount writing of any mandatory prepayment described in of Loans required to be made pursuant to (i) Section 2.11 that is allocated 4.03(a) at least three Business Days prior to Tranche B the date of such prepayment and (ii) Section 4.03(b) or (c) at least five Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each applicable Lender of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share or other applicable share of the prepayment. Each Term Loans Lender may reject all or a portion of its pro rata share or other applicable share of any mandatory prepayment (such amountdeclined amounts, the “Tranche B Prepayment AmountDeclined Proceeds”), at any time when Tranche A ) of Term Loans remain outstanding, the Borrower will, in lieu of applying such amount required to the prepayment of Tranche B Term Loans, as provided in be made pursuant to Section 2.11(d4.03(b) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice or (promptly confirmed in writingc) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a by providing written notice (each, a “Prepayment Option Rejection Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, to the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date no later than 5:00 p.m., New York City time, two (each a “Mandatory Prepayment Date”2) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice as being applicable to from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans rejected by such Lender’s Tranche B . If a Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay Lender fails to deliver a Rejection Notice to the relevant Tranche B Term Lenders Administrative Agent within the aggregate time frame specified above or such Rejection Notice fails to specify the principal amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which to be rejected, any such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall will be deemed an acceptance of the total amount of such mandatory prepayment referenced therein) and (ii) the Borrower of Term Loans. Any Declined Proceeds shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted be retained by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisBorrower.
Appears in 1 contract
Sources: Credit Agreement (Roundy's, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If If, at any Redeemable Preferred Interests time during the Revolving Commitment Period, for any reason the Aggregate Committed Outstandings of all Revolving Lenders exceed the Total Revolving Commitments then in effect, (i) the Company shall, without notice or Debt shall be issued demand, immediately prepay the Revolving Loans and/or (ii) the Borrowers shall, without notice or incurred by any Group Member demand, immediately prepay the Multicurrency Loans such that the sum of (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7A) or any initial cash proceeds that are related to a financing of a fixed the aggregate principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed the Revolving Loans so prepaid and (B) the U.S. Dollar Equivalent of the aggregate principal amount of Receivables Assets the Multicurrency Loans so prepaid, equals or exceeds the amount of such excess.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock of the Company shall be received sold or issued by Borrower or any of its subsidiaries the Company (other than (i) in connection with a Permitted Receivables Financingoptions exercisable for the purchase of Capital Stock or compensation-related transactions with officers, employees or directors, to the extent the aggregate Net Cash Proceeds thereof do not exceed $15,000,000 in any fiscal year of the Company and (ii) upon issuance of Capital Stock upon the conversion of the Convertible Subordinated Notes), an amount equal to 10050% of the Net Cash Proceeds thereof shall be applied on the date of such issuance sale or incurrence issuance, unless a Reinvestment Notice shall be delivered in respect of such sale or issuance, toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.5(e), provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant sale or issuance shall be applied toward the prepayment of Term Loans and the Revolving Loans as set forth in Section 5.5(e).
(bc) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date date, the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereofof such Recovery Event or Asset Sale, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.5(e); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, on any date which this Agreement is in effect, 20% of the net fixed asset value plus inventory of the Company and its Subsidiaries, on a consolidated basis, as of the last day of the fiscal year of the Company most recently ended prior to such date and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d5.5(e).
(cd) IfNotwithstanding the foregoing, for any Fiscal Year mandatory prepayments of the Borrower commencing with the Fiscal Year ending December 31, 2011, there Revolving Loans or Multicurrency Loans that would otherwise be required pursuant to this Section 5.5 solely as a result of fluctuations in Exchange Rates from time to time shall only be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered made pursuant to this Section 5.5 on the Administrative Agent (for distribution to last Business Day of each month on the Agents and basis of the Lenders) and (ii) the date Exchange Rate in effect on such financial statements are actually deliveredBusiness Day.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 5.5 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then prepayment of the Dollar Revolving Loans without a permanent reduction of or, if the Revolving CommitmentsBorrowers elect, the Multicurrency Loans. The application of any prepayment of Term Loans or Dollar Revolving Loans pursuant to this Section 2.11 5.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 5.5 (except in the case of Dollar Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Dii Group Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests ----------------------------------------------- Capital Stock or Debt Indebtedness shall be issued or incurred by Holdings, the Borrower or any Group Member of its Subsidiaries (excluding (i) any Debt Capital Stock issued by any Subsidiary to the Borrower or another Subsidiary, (ii) any Capital Stock issued by Holdings to its or any of its Subsidiaries' employees or directors or to a seller of property pursuant to a Permitted Acquisition and (iii) any Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d).
(b) If on any date Holdings, the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment -------- Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.9(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111999 (but including, for the purposes hereof, only the period from the Closing Date through December 31, 1999 in determining Excess Cash Flow for such fiscal year), there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess ------ Cash Flow Application Date”") no later than five days after the earlier of (i) -------------------------- the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 2.9 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of -------- Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 2.9 shall be made, first, to ABR Loans and, second, to ----- ------ Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 2.9 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Specrite Brake Co)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be 8.2 and the Net Cash Proceeds received by the Borrower or any from the exercise of its subsidiaries in connection with a Permitted Receivables Financing, stock options) an amount equal to 100% of the Net Cash Proceeds thereof in respect of the issuance of such Capital Stock and the incurrence of such Indebtedness, in each case, shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)to the extent Revolving Loans are then outstanding.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)to the extent Revolving Loans are then outstanding; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)to the extent Revolving Loans are then outstanding.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 2.6 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving CommitmentsLoans. The application of any prepayment pursuant to this Section 2.11 2.7 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar LIBOR Loans. Each prepayment of the Revolving Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 2.7 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (TrueBlue, Inc.)
Mandatory Prepayments and Commitment Reductions. (a) If In the event and on each occasion that, on or after the Closing Date, the Borrower receives Net Cash Proceeds in respect of any Redeemable Preferred issuance or sale of Equity Interests of the Borrower (other than (i) issuances pursuant to any Employee Benefit Plan or Debt other benefit or employee incentive arrangement or (ii) issuances by the Borrower to its Subsidiaries), then, no later than two (2) Business Days after receipt by the Borrower of any such Net Cash Proceeds, the Borrower shall notify the Administrative Agent of the loan prepayment and/or commitment reduction required by this Section 2.14(a) (including the amount thereof) and, no later than the fifth (5th) Business Day following the date of receipt by the Borrower of such Net Cash Proceeds, first, the Borrower shall prepay any outstanding Delayed Draw Term Loans and, second, any Delayed Draw Commitments shall be issued permanently reduced, in each case as set forth in Section 2.15(b), in an aggregate amount equal to the lesser of (x) 100% of such Net Cash Proceeds and (y) the aggregate amount of the then-outstanding Delayed Draw Term Loans and Delayed Draw Commitments.
(b) In the event and on each occasion that, on or incurred by after the Closing Date, the Borrower receives Net Cash Proceeds in respect of the issuance, sale or incurrence of any Indebtedness of any Group Member referred to in clauses (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7i) or (iii) of the definition of Indebtedness (other than (i) capital leases or equipment financings, (ii) any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received Revolving Loans (as defined in the 2022 Credit Agreement) incurred by the Borrower or any of its subsidiaries Subsidiaries under the 2022 Credit Agreement, (iii) any Delayed Draw Term Loans (as defined in connection with a Permitted Receivables Financingthe 2025 DDTL Credit Agreement) incurred by the Borrower under the 2025 DDTL Credit Agreement, an amount equal to 100% (iv) intercompany debt between such entities, (v) borrowings under ordinary course working capital, letter of credit, factoring, securitization, commercial paper backstop or overdraft facilities, (vi) issuances of commercial paper and (vii) under this Agreement), then, no later than two (2) Business Days after receipt by the Borrower of any such Net Cash Proceeds, the Borrower shall notify the Administrative Agent of the Net Cash Proceeds thereof shall be applied on loan prepayment and/or commitment reduction required by this Section 2.14(b) (including the amount thereof) and, no later than the fifth (5th) Business Day following the date of receipt by any Group Member of any such issuance or incurrence toward Net Cash Proceeds, first, the prepayment of the Borrower shall prepay any outstanding Delayed Draw Term Loans and the Revolving Loans and, second, any Delayed Draw Commitments shall be permanently reduced, in each case as set forth in Section 2.11(d2.15(b).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, in an aggregate amount equal to the extent a Reinvestment Notice shall not have been delivered in respect thereof, lesser of (x) 100% of such Net Cash Proceeds shall be applied within ten days after and (y) the date that all post-closing adjustments associated therewith have been completed toward the prepayment aggregate amount of the then-outstanding Delayed Draw Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Delayed Draw Commitments.
(c) If, for any Fiscal Year of On the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash FlowDelayed Draw Commitment Termination Date, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans Delayed Draw Commitments shall automatically and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall permanently be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred reduced to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredzero.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to Upon the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application making of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Delayed Draw Term Loans (such amountLoan, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare Delayed Draw Commitments shall automatically and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall permanently be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender reduced by an amount equal to the portion principal amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Delayed Draw Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisLoan.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with permitted by the Required Lenders pursuant to Section 7) or any initial cash proceeds that are related 10.1 (except as may be otherwise agreed to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries the Required Lenders in connection with a Permitted Receivables Financingtheir approval of such Indebtedness pursuant to Section 10.1)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Prepayment Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction of Revolving Commitments, if applicable, shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment and, if applicable, reduction in Revolving Commitments is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made and Revolving Commitment reductions pursuant to this Section 2.11 and Section 7.5(a)(v) shall be applied, (i) first, to the prepayment of the Term Loans in accordance with Section 2.17(b) until all Term Loans have been paid in full, provided that, notwithstanding the foregoing (x) an aggregate amount of Net Cash Proceeds from Asset Sales and Recovery Events not to exceed $20,000,000 and (y) an aggregate amount of Excess Cash Flow not to exceed $20,000,000 that would otherwise be applied toward the prepayment of the Term Loans may be applied to prepay outstanding Revolving Loans without reduction of the Revolving Commitments, and, (ii) second, to reduce the permanent reduction of Revolving Commitments as set forth in this Section 2.11(d). Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans and then to the extent, if any, that the Total Revolving Loans without a Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that, in the case of any such permanent reduction of the Revolving Commitments, if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount by which the Total Revolving Extensions of Credit exceeds the amount of Total Revolving Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrower shall, if an Event of Default shall have occurred and be continuing, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 or Section 7.5(a)(v) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 or Section 7.5(a)(v) (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, . Unless required as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date result of the Prepayment Option Notice, the relevant Term Loans permanent reduction of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii)Revolving Commitments, any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall Revolving Loans prepaid hereunder may be used to prepay the Tranche B Term Loans on a pro rata basisreborrowed.
Appears in 1 contract
Sources: Credit Agreement (Mq Associates Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt incurred Indebtedness permitted in accordance with Section 7.2 or Capital Stock issued (other than any Permitted Refinancing Indebtedness in compliance with Section 7) or any initial cash proceeds that are related to a financing respect of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthe Facilities)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that prepayments pursuant to this Section 2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b).
(ba) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, thereof 100% of such Net Cash Proceeds shall be applied within ten days five Business Days after the such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving B Loans as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving B Loans as set forth in Section 2.11(d).
(cb) If, for any Fiscal Year fiscal year of the Parent Borrower commencing with the Fiscal Year ending December 31, 2011first full fiscal year after the Closing Date, there shall be Excess Cash Flow, the Parent Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term B Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow toward over (y) the prepayment sum of (I) the aggregate principal amount of any (x) Term Loans and Revolving Loans (including under any Incremental Facilities) prepaid pursuant to Section 2.10, plus (II) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Loans and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise retired), plus (III) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt, Replacement Loan and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, resulting from any purchase or assignment made in accordance with Sections 2.25 and 10.6(e) of this Agreement (including in connection with any Dutch Auction) (with respect to Term Loans) and any equivalent provisions with respect to any such Incremental Equivalent Debt, such Replacement Loans and/or such other Indebtedness, but only to the extent of the Revolving Commitments as set forth actual price paid in cash by the applicable Borrower in connection with such purchase or assignment, in each case of clauses (I)-(III), (A) excluding any such payments, prepayments and expenditures made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.11(d2.11(c) in the prior fiscal year, (B) in the case of any prepayment of revolving Indebtedness, only to the extent accompanied by a permanent reduction in the relevant commitments and (C) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other long-term funded Indebtedness (other than revolving Indebtedness) of the Parent Borrower or its Restricted Subsidiaries; provided that, with respect to each fiscal year, a prepayment shall only be required under this Section 2.11(c) if the applicable prepayment under this Section 2.11(c) for such fiscal year is greater than $5,000,000 (the “ECF Threshold”); provided further that only amounts in excess of the ECF Threshold shall be required to be applied to prepay Term Loans under this Section 2.11(c). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Parent Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(dc) Amounts Subject to Section 2.11(g), amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, applied to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments). The application of any prepayment pursuant to this Section 2.11 shall be made, made first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ed) Notwithstanding anything With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Facility Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Parent Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the contrary in Section 2.11(d) or 2.17, with respect to date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of any mandatory such prepayment described in Section 2.11 that is allocated required to Tranche B Term Loans be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such amount, prepayment (the “Tranche B Prepayment Declined Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount ) by providing written notice to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 no later than two Business Days after the date of such Lender’s receipt of notice from the Prepayment Option NoticeAdministrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such Lender’s Declined Amount may be retained by the Parent Borrower.
(e) Notwithstanding any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the relevant Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Parent Borrower or any applicable Domestic Subsidiary or if the Parent Borrower has determined in good faith that repatriation of any such amount to the Parent Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Parent Borrower or the applicable Domestic Subsidiary, or the Parent Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such Lender by affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Parent Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, 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 five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Parent Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Parent Borrower applies an amount equal to the portion amount of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable Net Cash Proceeds or Excess Cash Flow to such Lender’s Tranche B Term Loans. On reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Mandatory Prepayment DateParent Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (ior, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).
(f) the Borrower shall pay Additional Pari Passu Indebtedness may share in any mandatory prepayment under this Section 2.11 (other than any mandatory prepayment under Section 2.11(a) with respect to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above Permitted Refinancing Indebtedness in respect of which the Facilities) on a ratable basis (but, for the avoidance of doubt, not on a greater than pro rata basis) to the extent such Lenders have accepted prepayment is required under the terms of such Additional Pari Passu Indebtedness and such prepayment shall reduce, without duplication, the amount of any prepayment of Term Loans otherwise required under this Section 2.11.
(it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced thereing) and If for any reason (iiother than currency fluctuations) the aggregate Revolving Extensions of Credit of all Lenders under the Revolving Facility at any time exceeds the aggregate Revolving Commitments under the Revolving Facility, promptly following written notice from the Administrative Agent to the Parent Borrower, the applicable Borrower shall pay prepay or cause to be promptly prepaid the Tranche A Term Lenders Revolving Loans or Swingline Loans or cash collateralize the outstanding Letters of Credit in an aggregate amount equal to such excess.
(h) On the portion last Business Day of each fiscal quarter, or at such other time as is reasonably determined by the Administrative Agent, the Administrative Agent shall determine the Dollar Equivalent of the Tranche B Prepayment Amount not accepted aggregate outstanding Revolving Extensions of Credit. If, at the time of such determination, the aggregate outstanding Revolving Extensions of Credit exceed the Revolving Commitments then in effect by the relevant Lenders5% or more, and such amount shall be applied then within five Business Days of written notice to the prepayment Parent Borrower, the applicable Borrower shall prepay Revolving Loans or Swingline Loans or cash collateralize the outstanding Letters of the Tranche A Term LoansCredit in an aggregate principal amount at least equal to such excess; provided that if after the application of amounts pursuant to clause (ii), any portion failure of the Tranche B Prepayment Amount Administrative Agent to determine the Dollar Equivalent of the aggregate outstanding Revolving Extensions of Credit as provided in this Section 2.11(i) shall not accepted by subject the Tranche B Term Lenders shall remain, such amount shall be used Administrative Agent to prepay the Tranche B Term Loans on a pro rata basisany liability hereunder.
Appears in 1 contract
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests Capital Stock or Debt Indebtedness shall be issued or incurred Incurred by the Borrower or any Group Member of its Subsidiaries (excluding any Debt incurred Permitted Issuance and any Incurrence of Indebtedness in accordance with Section 7.2 or Capital Stock issued as in compliance with Section 7) or any initial cash proceeds that are related to a financing effect on the date of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthis Agreement), an amount equal to 100% of the Net Cash Proceeds thereof (excluding any Equity Financing Proceeds) shall be applied on the date of such issuance or incurrence Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d).
(b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied applied, within ten days five Business Days after the date that all post-closing adjustments associated therewith have been completed such date, toward the prepayment of the Term Loans and the reduction of the Revolving Loans Credit Commitments as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement in any fiscal year of the Borrower pursuant to a Reinvestment Notice, when added to the aggregate fair market value of Property Disposed of in connection with Asset Swaps during such fiscal year, shall not exceed $20,000,000 and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Revolving Credit Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Credit Commitments. Any such reduction of the Revolving CommitmentsCredit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment Amounts prepaid on account of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall may not be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisreborrowed.
Appears in 1 contract
Sources: Credit Agreement (Campfire Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Mandatory prepayment of the Loans, outstanding Revolving L/C Unreimbursed Drawings and, as applicable, the Cash Collateralization of the Letters of Credit in connection therewith, shall be issued or incurred by any Group Member (excluding any Debt incurred made in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% 3.3 of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d)Common Terms Agreement.
(b) If on Subject to Section 3.3(d) of the Common Terms Agreement, any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to mandatory prepayment of the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds Obligations shall be applied within ten days after as follows:
(i) first, on a pro rata basis to the date that all post-closing adjustments associated therewith have been completed toward the prepayment payment of the Term outstanding Revolving Loans and the payment of any Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoingL/C Unreimbursed Drawings;
(ii) second, on each Reinvestment Prepayment Date, an amount equal a pro rata basis to the Reinvestment Prepayment Amount with respect Cash Collateralization of all outstanding Letters of Credit;
(iii) third, on a pro rata basis to the relevant Reinvestment Event shall payment of all other amounts then due and payable to the Lender Parties; and
(iv) fourth, any amount remaining may be retained by the Borrower and applied toward to permanently reduce the prepayment of the Term Loans and Commitments under the Revolving Loans as set forth in Section 2.11(d)Facility.
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction All mandatory prepayments hereunder shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually deliveredat par.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the Upon any such prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction the Borrower shall pay to the Administrative Agent for the account of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be madeapplicable Lenders, firston a pro rata basis, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loansi) shall be accompanied by all accrued interest to the date of such prepayment on the amount prepaid, (ii) all accrued fees to the date of such prepayment corresponding to the amount being prepaid and (iii) if such prepayment is the prepayment of a Eurodollar Loan on a day other than the last day of an Interest Period for such Loan, all amounts owing pursuant to Section 2.15 as a result of such prepayment.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to Upon the prepayment of the Tranche A Term Loans; provided that if after the application of amounts Revolving Loans pursuant to clause (ii)this Section 2.6 , any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount Revolving Commitments shall be used to prepay the Tranche B Term Loans permanently reduced, on a pro rata basis, by the amount of such prepayment.
(f) In no event shall any prepayment or Cash Collateralization be funded from the proceeds of any Loan.
(g) In the event that any Letter of Credit is Cash Collateralized pursuant to the terms hereof in an amount at least equal to the then outstanding Available Amount thereof, the Borrower shall use commercially reasonable efforts to cause the termination of such Letter of Credit promptly following the date on which such Cash Collateralization occurs.
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Mandatory Prepayments and Commitment Reductions. (a) If If, after the Closing Date, (i) any Redeemable Preferred Interests or Debt Capital Stock shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by the Borrower or any of its subsidiaries Subsidiaries (other than Excluded Capital Stock), an amount equal to 50% of the Net Cash Proceeds of such issuance shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in connection with a Permitted Receivables FinancingSection 4.8(b) or (ii) any Indebtedness shall be incurred by the Borrower or any of its Subsidiaries (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof of such incurrence shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.8(b).
(b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale which occurs after the Closing Date or from any Recovery Event which occurs after the Closing Date, then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days three Business Days after the date that all post-closing adjustments associated therewith have been completed receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.8(b); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales which occur after the Closing Date, that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $30,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d4.8(b).
(c) If, for any Fiscal Year full fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending on or about December 31, 20112006, there shall be more than $5,000,000 of Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans, as set forth in Section 4.8(b), an amount equal to: (1) the ECF Percentage of such Excess Cash Flow toward minus (2) the prepayment aggregate amount of the Term all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the reduction extent accompanying permanent optional reductions of the Revolving Commitments as set forth in or to the extent representing the prepayments of Revolving Loans incurred to finance the Restricted Payments made pursuant to Section 2.11(d)8.6(i) minus (3) the aggregate amount of all optional prepayments of Term Loans during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 4.2 shall be made, first, to ABR Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.the
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with permitted by the Required Lenders pursuant to Section 7) or any initial cash proceeds that are related 10.1 (except as may be otherwise agreed to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries the Required Lenders in connection with a Permitted Receivables Financingtheir approval of such Indebtedness pursuant to Section 10.1)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Prepayment Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and and, if applicable, the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction of Revolving Commitments, if applicable, shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days Business Days after the earlier of (i) the date on which the financial statements of [the Borrower Borrower]Holdings referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment and, if applicable, reduction in Revolving Commitments is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made and Revolving Commitment reductions pursuant to this Section 2.11 and Section 7.5(a)(v) shall be applied, (i) first, to the prepayment of the Term Loans in accordance with Section 2.17(b) until all Term Loans have been paid in full, provided that, notwithstanding the foregoing, if there exists a Target Leverage Ratio (as determined after taking into account the prepayments of Term Loans to be made from the Net Cash Proceeds or Excess Cash Flow, as the case may be (as evidenced by a certificate attaching the most recently delivered Compliance Certificate certified as of the date of such notice by a Responsible Officer as being true, accurate and complete in all material respects)) then, (x) an aggregate amount of Net Cash Proceeds from Asset Sales and Recovery Events not to exceed $20,000,000 and (y) an aggregate amount of Excess Cash Flow not to exceed $20,000,000 that would otherwise be applied toward the prepayment of the Term Loans may be applied to prepay outstanding Revolving Loans without reduction of the Revolving Commitments, and, (ii) second, to reduce the permanent reduction of Revolving Commitments as set forth in this Section 2.11(d). Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans and then to the extent, if any, that the Total Revolving Loans without a Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that, in the case of any such permanent reduction of the Revolving Commitments, if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount by which the Total Revolving Extensions of Credit exceeds the amount of Total Revolving Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrower shall, if an Event of Default shall have occurred and be continuing, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 or Section 7.5(a)(v) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 or Section 7.5(a)(v) (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, . Unless required as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date result of the Prepayment Option Notice, the relevant Term Loans permanent reduction of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii)Revolving Commitments, any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall Revolving Loans prepaid hereunder may be used to prepay the Tranche B Term Loans on a pro rata basisreborrowed.
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Sources: Credit Agreement (Mq Associates Inc)
Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt including Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued 7.2(g) and Section 7.2(h)(A) (to the extent contemplated therein), but excluding any other Indebtedness incurred in compliance accordance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower Borrower, commencing with the Fiscal Year fiscal year ending December 31, 20112004, there shall be Excess Cash Flow, then, if the Consolidated Leverage Ratio of the Borrower as at the last day of the period of four consecutive fiscal quarters of the Borrower most recently ended before the relevant Excess Cash Flow Application Date shall exceed 2.50 to 1.00, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivereddelivered to the Administrative Agent and the Lenders.
(d) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, in the case of any Net Cash Proceeds from any Asset Sale or Recovery Event or incurrence of Indebtedness, to permanently reduce the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the aggregate Revolving Extensions of Credit under the relevant facility exceed the amount of the aggregate Revolving Commitments threreunder as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount required to reduce the US$ Revolving Extensions of Credit, the Borrower shall, to the extent of such remaining amount, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section Sections 2.11(d) or and 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amountamounts, the “Tranche B Mandatory Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(dparagraph (d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Mandatory Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Mandatory Prepayment Option Notice, which shall be in the form of Exhibit GI-2, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Mandatory Prepayment Option Notice, the relevant Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Mandatory Prepayment Amount indicated in such Lender’s Mandatory Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Tranche B Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure or are deemed to respond have accepted prepayment pursuant to a the Mandatory Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) Notice, and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Mandatory Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after .
(f) If, on any Determination Date, the application aggregate Multicurrency Revolving Extensions of amounts pursuant to clause (ii), any portion Credit exceed 105% of the Tranche B Prepayment Amount aggregate Multicurrency Revolving Commitments, the Borrower shall, without notice or demand, within three Business Days after such Determination Date, prepay Multicurrency Revolving Loans in an aggregate amount such that, after giving effect thereto, the aggregate Multicurrency Revolving Extensions of Credit do not accepted by exceed the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basisaggregate Multicurrency Revolving Commitments.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Multi-Currency Lenders otherwise agree, if at any Redeemable Preferred Interests or Debt time and from time to time the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Multi-Currency Availability at such time, the Company and/or the Local Borrowing Subsidiaries shall immediately repay the Revolving Credit Loans, the Swing Line Loans, the Local Loans, the Acceptances and/or the L/C Reimbursement Obligations (and, to the extent necessary, cause the then outstanding Undrawn L/C Obligations to be issued or incurred by any Group Member (excluding any Debt incurred Fully Secured) in accordance with the provisions of Section 7.2 7.4 by the amount equal to such excess.
(b) Unless the Required Multi-Currency Lenders otherwise agree, if at any time and from time to time the sum (based on the Borrowing Base Certificate most recently delivered to the Multi-Currency Administrative Agent pursuant to Section 10.17 or Capital Stock issued in compliance with Section 7at the request of the Multi-Currency Administrative Agent) or any initial cash proceeds that are related to a financing of a fixed (i) the aggregate outstanding principal amount of Receivables Assets or any initial incremental cash proceeds that Local Loans denominated in Dollars which are related owing by the Local Borrowers to financing an increased fixed a Local Fronting Lender, (ii) the Equivalent in Dollars of 105% of the aggregate outstanding principal amount of Receivables Assets Local Loans denominated in the relevant Denomination Currency which are owing by the Local Borrowers to such Local Fronting Lender and (iii) the Equivalent in Dollars of 105% of the aggregate undiscounted face amount of Acceptances in the relevant Denomination Currency which are owing by the relevant Local Borrowing Subsidiary to such Local Fronting Lender, exceeds the Currency Sublimit for such Local Fronting Lender, such Local Borrowers shall, within three Business Days, repay the Local Loans and Acceptances owing by them to such Local Fronting Lender by the amount equal to such excess.
(c) Unless the Required Term Loan Lenders otherwise agree, the Term Loans owing to each Term Loan Lender shall be received repaid, without premium, within 100 days after the last day of each fiscal year of the Company by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 10050% of Excess Cash Flow for such fiscal year in accordance with the provisions of Section 7.4; provided, however, that any Term Loan Lender may elect to waive its rights to any payment owing to it pursuant to this Section 7.3(c) and, if any Term Loan Lender so elects, the amounts otherwise payable to such Term Loan Lender (if not made from proceeds of Revolving Credit Loans) shall instead be applied to repay the Revolving Credit Loans (without any permanent reduction of the Aggregate Multi-Currency Commitment).
(d) On the Multi-Currency Termination Date, the Aggregate Multi-Currency Commitment shall terminate and the Borrowers shall cause all Payment Obligations in respect of the Aggregate Actual Outstanding Multi-Currency Extensions of Credit to be Fully Satisfied.
(e) Promptly following a Net Proceeds Event (and in any event within one Business Day following receipt by the relevant Person of the Net Cash Proceeds thereof from such Net Proceeds Event):
(i) unless the Required Lenders otherwise agree, the New Term Loans shall be applied on repaid and the date Aggregate Multi-Currency Commitments shall be permanently reduced, in the manner set forth in Section 7.4(a), by the amount equal to the aggregate amount of Net Proceeds received from Net Proceeds Events described in clause (a) of such issuance or incurrence toward definition;
(ii) unless the prepayment of Required Lenders otherwise agree, the New Term Loans and the Revolving Credit Loans as shall be repaid (without any corresponding reduction of the Aggregate Multi-Currency Commitment), in the manner set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent a Reinvestment Notice shall not have been delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(c) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2011, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b7.4(a), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated aggregate amount of Net Proceeds (other than the Net Proceeds from Resale Transactions) received by the Company and its Subsidiaries from all Net Proceeds Events described in clause (b) of such Lender’s Prepayment Option Notice as being applicable definition; provided, however, that (x) no such prepayment of the New Term Loans or the Revolving Credit Loans shall be required pursuant to such Lender’s Tranche B this Section 7.3(e)(ii) with respect to any sale, lease, transfer or other disposition of Term Loans. On Loan Collateral during any twelve-month period ending on an anniversary of the Mandatory Prepayment Date, (i) the Borrower shall pay date hereof to the relevant Tranche B Term Lenders extent that the aggregate amount necessary of such Net Proceeds, together with all other Net Proceeds described in this Section 7.3(e)(ii) received during such period from any sale, lease, transfer or other disposition of Term Loan Collateral, is less than $10,000,000 or the Equivalent in any other currency thereof; provided, further, that in the event that the aggregate Net Proceeds described in this clause (x) received during such twelve-month period (the “Annual Net Proceeds”) is less than $10,000,000, the difference between $10,000,000 and the Annual Net Proceeds may be added to prepay that portion the $10,000,000 permitted to be excluded from the prepayment of the outstanding relevant New Term Loans as described above or the Revolving Credit Loans pursuant to this clause (x) applicable to any subsequent twelve-month period (up to a maximum excluded amount not to exceed $25,000,000 in any such twelve-month period) and (y) for purposes of this Section 7.3(e)(ii) only, the term “Net Proceeds” shall not include the Net Proceeds from any Specified Disposition to the extent that the aggregate amount of Net Proceeds from all Specified Dispositions since the Amendment No. 4 Effective Date does not exceed $25,000,000; and
(iii) unless the Required Multi-Currency Lenders otherwise agree, the Revolving Credit Loans shall be repaid (without any corresponding reduction of the Aggregate Multi-Currency Commitment) by the Net Proceeds received by the Company and its Subsidiaries from all Net Proceeds Events in respect of which such Lenders have accepted prepayment (it being understood that a failure Specified Dispositions to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and extent excluded from clause (ii) above; provided, however, that any Term Loans prepaid on or before the Borrower third anniversary of the Closing Date pursuant to this Section 7.3(e) shall pay to the Tranche A Term Lenders be accompanied by a premium in an amount equal to the portion Prepayment Fee applicable at such time.
(f) If, any Borrower would incur costs pursuant to Section 7.11 as a result of any payment due pursuant to this Section 7.3 (other than clause (h) below), such Borrower may deposit the Tranche B Prepayment Amount not accepted by amount of such payment with the applicable Administrative Agent, for the benefit of the relevant Lenders, and in a Cash Collateral Account under the control of the applicable Administrative Agent, until the end of the applicable Interest Period at which time such amount payment shall be applied made (provided that such deposit does not violate any provision of any Indenture then in effect). Each Borrower hereby grants to the prepayment applicable Administrative Agent, for the benefit of such Lenders, a security interest (or, if the applicable Borrower is a Local Borrowing Subsidiary organized under the laws of the Tranche A Commonwealth of Australia or any political subdivision thereof, the applicable Administrative Agent shall have a right to apply and setoff such payment toward any amount payable by such Local Borrowing Subsidiary at the end of the applicable Interest Period) in all amounts in which such Borrower has any right, title or interest which are from time to time on deposit in such Cash Collateral Account and expressly waives all rights (which rights such Borrower hereby acknowledges and agrees are vested exclusively in the applicable Administrative Agent) to exercise dominion or control over any such amounts.
(g) Upon the borrowing of Term Loans pursuant to Section 2.1, the Term Loan Commitment of each Term Loan Lender shall be automatically and permanently reduced in the amount of the Term Loan made by each Term Loan Lender pursuant to such borrowing. The Aggregate Term Loan Commitment, if any, shall terminate on the Closing Date after the funding of the Term Loans; provided that if after .
(h) The Borrowers hereby irrevocably waive the right to direct, during a Liquidity Event Period or, prior to the delivery of a Notice of Actionable Default, at any time an Event of Default has occurred and is continuing, the application of amounts pursuant all funds in the Cash Concentration Account or any other Approved Deposit Account (or any Cash Collateral Account under the direction of any Loan Party, if any) and agrees that the Multi-Currency Administrative Agent may (in its sole discretion exercised reasonably) and, upon the written direction of the Required Multi-Currency Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice (or similar term, as defined in each Deposit Account Control Agreement) to clause each Deposit Account Bank for each Approved Deposit Account and (ii) apply all available funds in (A) the Cash Concentration Account or any other Approved Deposit Account on a daily basis (but only so long as such Liquidity Event Period or Event of Default, as the case may be, is continuing) as follows: first, to repay the outstanding principal amount of the Swing Line Loans until such Swing Line Loans have been repaid in full; and second, to repay the outstanding principal balance of the Revolving Credit Loans until such Revolving Credit Loans shall have been repaid in full and (B) such Cash Collateral Account for the purposes contemplated under the Loan Documents in its sole discretion exercised reasonably. The Multi- Currency Administrative Agent agrees to use its commercially reasonable efforts to apply such funds in accordance with this Section 7.3(h), any portion and the Borrowers consent to such application. Without diminishing the control of the Tranche B Prepayment Amount not accepted by Collateral Agent (under the Tranche B Term Lenders direction of the applicable Agent) over amounts from time to time on deposit in any Cash Collateral Account, the applicable Agent shall remain, from time to time (upon the request of the Company so long as no Default or Event of Default shall have occurred and be continuing) direct the Collateral Agent to promptly return to the Company any amounts on deposit in such Cash Collateral Account which are in excess of the amount required to be deposited therein under the Loan Documents. If no Liquidity Event or Event of Default shall be used to prepay continuing, the Tranche B Term Loans on Multi-Currency Administrative Agent shall not deliver any Blockage Notice and shall, upon receipt of three Business Days’ prior written notice and a pro rata basiscertificate of a Responsible Officer of the Company that no Liquidity Event or Event of Default is continuing, withdraw all Blockage Notices in effect at such time.
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Mandatory Prepayments and Commitment Reductions. (a) If on any Redeemable Preferred Interests or Debt shall be issued or incurred by any Group Member (excluding any Debt incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by date Parent, the Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(c); provided PROVIDED, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(c); PROVIDED, FURTHER, that the aggregate amount of mandatory prepayments under this paragraph (a) as a result of Asset Sales permitted under Section 7.5(f) in respect of a Qualified Securitization Transaction shall not exceed the maximum amount of outstanding receivables subject to such Qualified Securitization Transaction on the date of testing or any date prior thereto.
(cb) If, for the period beginning on the Closing Date and ending December 31, 1999 and for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year ending December 31, 2011thereafter, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.11(c). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”"EXCESS CASH FLOW APPLICATION DATE") no later than five days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(dc) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied, firstFIRST, to the prepayment of the Term Loans (in accordance with Section 2.17(b)) and, secondSECOND, to reduce permanently the Swingline Loans and then Revolving Loans without a permanent Commitments. Any such reduction of the Revolving CommitmentsCommitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made, first, made first to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ed) Notwithstanding anything to the contrary in Section 2.11(d2.11(c) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 2.11(b) that is allocated to Tranche B Term Loans (such amountamounts, the “Tranche B Prepayment Amount”"PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, Loans as provided in Section 2.11(dparagraph (c) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”"PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”"MANDATORY PREPAYMENT DATE") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Term Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Term Lender’s =s Prepayment Option Notice as being applicable to such Term Lender’s Tranche B =s Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Term Lenders have accepted prepayment (it being understood that a failure pursuant to respond to a the Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay be entitled to the Tranche A Term Lenders an amount equal to retain the portion of the Tranche B Prepayment Amount not accepted by the relevant Term Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by any Group Member (excluding any Debt Indebtedness incurred in accordance with Section 7.2 or Capital Stock issued in compliance with Section 7) or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financing7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d).
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Sale, Recovery Event or Permitted Sale-Leaseback then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, an amount equal to such Net Cash Proceeds (or in the case of a Permitted Sale-Leaseback the portion of such Net Cash Proceeds referred to in Section 7.11) shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in the aggregate and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d).
(c) If, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20112005, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b6.1(a), for the Fiscal Year fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then prepayment of any outstanding Revolving Loans (without a permanent reduction of reducing the Revolving Commitments). The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.
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Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Redeemable Preferred Interests or Debt Indebtedness shall be issued or incurred by Holdings, the Borrower or any Group Member of its Restricted Subsidiaries (excluding any Debt Indebtedness incurred in accordance with Section 7.2 and any proceeds of senior subordinated notes to the extent applied to repay or Capital Stock issued in compliance with Section 7) repurchase the Subordinated Facility, the Wind▇ ▇▇▇▇ ▇▇▇ior Subordinated Notes, the Wind▇ ▇▇▇▇ ▇▇▇ordinated Seller Note or any initial cash proceeds that are related to a financing of a fixed principal amount of Receivables Assets or any initial incremental cash proceeds that are related to financing an increased fixed principal amount of Receivables Assets shall be received by Borrower or any of its subsidiaries in connection with a Permitted Receivables Financingthe Doan▇ ▇▇▇ior Notes), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(f).
(b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (excluding (i) the sale of assets securing IDB financings and (ii) purchase money indebtedness used to repay the sales in clause (i) above) then, to the extent unless a Reinvestment Notice shall not have been be delivered in respect thereof, such Net Cash Proceeds shall be applied within ten days after the on such date that all post-closing adjustments associated therewith have been completed toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(f); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in the aggregate (exclusive of any reinvestment in IDB) and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Loans Commitments as set forth in Section 2.11(d2.11(f).
(c) IfUnless the Required Prepayment Lenders shall otherwise agree, if, for any Fiscal Year fiscal year of the Borrower commencing with the Fiscal Year fiscal year ending December 31, 20111999, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d2.11(f). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.11(d) or 2.17, with respect to the amount of any mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 2.11(d) above, on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such amount shall be used to prepay the Tranche B Term Loans on a pro rata basis.Flow
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