Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof. (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document. (c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements. (d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. (e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. (f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 4 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Mandatory Prepayments. (ai) When If the Administrative Agent notifies a Borrower at any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in time that (x) the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted Revolving Credit Exposure under Section 7.1, Borrowers shall repay the Advances in a Revolving Credit Facility at such time exceeds an amount equal to 100% of the Net Disposition Proceeds of Revolving Commitments for such saleRevolving Credit Facility then in effect, such repayments to be made promptly but in no event more than three (3) then, within two Business Days following after receipt of such net proceedsnotice, and until the date relevant Borrower shall prepay Revolving Loans of payment, such proceeds shall be held Borrower under such Revolving Credit Facility and/or Cash Collateralize the L/C Exposure in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments respect of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit issued for the account of such Borrower in accordance with an aggregate amount sufficient to reduce such Revolving Credit Exposure as of such date of payment to an amount not to exceed 100% of the Revolving Commitments then in effect under such Revolving Credit Facility; provided, however, that, subject to the provisions of Section 3.2(b2.05(g)(ii), provided however that if no Default or Event of Default has occurred and is continuing, such repayments Borrower shall be applied required to cash collateralize any Obligations related Cash Collateralize the L/C Exposures pursuant to outstanding Letters this Section 2.10(b) unless, after the prepayment in full of the Revolving Loans under the applicable Revolving Credit last) Facility, the Revolving Credit Exposure under such Revolving Credit Facility exceeds the Revolving Commitments then in effect under such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofCredit Facility.
(bii) Notwithstanding (A) If the foregoing, with respect to Company or any Subsidiary receives any Net Disposition Cash Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)from any Asset Sale or Casualty Event, so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in apply an amount equal to twenty-five percent 100% of such Net Cash Proceeds (25%) in the case of Excess an Asset Sale by a Foreign Subsidiary, net of additional taxes payable (or that would be payable if the Net Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied Proceeds were repatriated to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent United States) or Lenders may have reserved against as a result of thereof) in accordance with Section 2.10(b)(vi) on or prior to the failure by Borrowers to deliver such financial statements.
date which is ten (d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (310) Business Days after the receipt by Borrowers date of the cash proceeds from any such issuance realization or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) receipt of such cash proceeds in the case of Net Cash Proceeds; provided that no such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments prepayment shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than required pursuant to any issuance of Equity Interests of Borrowers (ithis Section 2.10(b)(ii)(A) contemplated by Section 6.5(d), (ii) used with respect to fund Capital Expenditures not to exceed $4,000,000 per fiscal year such Net Cash Proceeds that the Company or (iii) used to fund Permitted Acquisitions, Borrowers a Subsidiary shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied reinvest in accordance with Section 6.62.10(b)(ii)(B).
Appears in 4 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Mandatory Prepayments. (a) When In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit exceeds the Line Cap (including after giving effect to any Borrower sells reductions in the Revolving Credit Commitments pursuant to Section 5.4(a)), the Company shall prepay Revolving Credit Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to such excess.
(b) Upon the Revolving Credit Termination Date, the Company shall, with respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or otherwise disposes (ii) Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent on terms satisfactory to the Administrative Agent.
(c) If any Credit Party receives any Proceeds in respect of any Collateral resulting in Net Disposition Proceeds in excess Prepayment Event, then the Company shall, within five (5) Business Days following such Credit Party’s receipt of $500,000 in such Proceeds, prepay the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an aggregate amount equal to the Net Disposition Proceeds lesser of 100% of such saleProceeds and the aggregate outstanding principal amount of the Loans; provided that, such repayments to be made promptly but if no Cash Dominion Event is then in no event more than three existence, then the Company shall, within five (35) Business Days following after its receipt of such net proceedsProceeds, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Credit Parties intend to apply the Proceeds from such Prepayment Event (or a portion thereof specified in such certificate) within six (6) months after receipt of such Proceeds to acquire equipment, inventory or other tangible assets to be used in the business of the Credit Parties, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however certifying that if no Default or Cash Dominion Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastand then either (i) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Cash Dominion Event has occurred or is in effect, no prepayment shall be required pursuant to this paragraph (c) in respect of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two Proceeds specified in such certificate (2provided that, any portion of the Proceeds not reinvested pursuant to this paragraph (c) Business Days following by the 180th day after receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied repaid by Agent to the Revolving Advances and Agent shall implement a reserve such 180th day in an aggregate amount equal to the amount lesser of 100% of such Net Disposition non-reinvested Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in and the aggregate outstanding principal amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(cLoans), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as if a result of any taking or condemnation of any assets or property Cash Dominion Event has occurred and is continuing and such Proceeds have not been applied to repay the Loans, then the Company shall deposit such Proceeds into the Collection Account and, thereafter, such funds shall be applied made available to the applicable Credit Party as follows:
(A) the Company shall request that a release (specifying that the request is to use Proceeds pursuant to this Section 5.6(c)) from the Collection Account be made in accordance with the amount needed; and
(B) so long as the conditions set forth in Section 6.67.3 have been met, the Administrative Agent shall release funds from the Collection Account. All prepayments made under this Section 5.6(c) shall be made without a permanent reduction of the Revolving Credit Commitment.
Appears in 3 contracts
Sources: Credit Agreement (KLX Energy Services Holdings, Inc.), Credit Agreement (KLX Energy Services Holdings, Inc.), Credit Agreement (KLX Energy Services Holdings, Inc.)
Mandatory Prepayments. (a) When any On each date on which Agent actually receives a distribution of Net Proceeds and if Agent is not required to make such Net Proceeds available to Borrower sells or otherwise disposes for the Restoration of any Collateral resulting the Property pursuant to Section 5.3, Agent may, in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearits sole and absolute discretion, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal elect to either make the Net Disposition Proceeds of such saleavailable for Restoration pursuant to Section 5.3 or use the Net Proceeds to prepay, such repayments to be made promptly but in no event more than three without premium or penalty (3) Business Days following receipt of such net proceedsincluding the Spread Maintenance Premium), and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments balance of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Note in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Proceeds. Any prepayment received by Agent for the ratable benefit and account of the Lenders and pursuant to this Section 2.5.2 on a date other than a Payment Date shall be held by Agent as collateral security for the Loan in the case of an interest bearing account, with such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, interest accruing to the outstanding principal installments benefit of the Term Loan in the inverse order of the maturities thereof Borrower, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as by Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with on the terms hereofnext Payment Date.
(eb) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d)In addition, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year Borrower shall prepay without premium or (iii) used to fund Permitted Acquisitionspenalty, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsincluding, and Agent in its sole discretionwithout limitation, within such ten (10) day periodthe Spread Maintenance Premium, may request an appraisal of Equipment and Real Property to determine if the then outstanding principal balance of the Term Note in an amount equal to the amount required by Agent due to changes in tax and debt credit pursuant to Section 5.3 of the Mortgage or if Borrower prepays a portion of the Loan exceeds the Term Loan Collateral Amount at the time pursuant to Section 6.5.6.
(c) In each instance of such issuance of Equity Interestsprepayment under this Section 2.5.2, Borrower shall be required to pay all other sums due hereunder (including under Sections 2.2.7 and 2.4.3) and no principal amount repaid may be reborrowed.
(d) All prepayments are to be made on a Payment Date. If any prepayment is received by Agent does not order an appraisal of on a date other than a Payment Date the Equipment same shall be held by Agent as collateral security for the Loan and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to by the Revolving Advances. If Agent orders an appraisal of Lenders on the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofnext Payment Date.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Loan Agreement (Empire State Realty Trust, Inc.), Loan Agreement (Empire State Building Associates L.L.C.), Loan Agreement (Empire State Realty Trust, Inc.)
Mandatory Prepayments. (a) When In the event the Aggregate Revolving Credit Extensions of Credit exceeds the Line Cap (including after giving effect to any Borrower sells reductions in the Revolving Credit Commitments pursuant to Section 5.4(a)), the Company shall within one (1) Business Day of notice thereof from the Administrative Agent prepay Revolving Credit Loans (including the Swingline Loans) and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to such excess.
(b) Upon the Revolving Credit Termination Date, the Company shall, with respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or otherwise disposes (ii) Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent and each applicable Issuing Lender on terms satisfactory to the Administrative Agent and each applicable Issuing Lender.
(c) If any Credit Party receives any Net Proceeds in respect of any Notes Priority Collateral resulting Prepayment Event, then (i) so long as no Cash Dominion Event has occurred or is in effect, the Company shall, on the next Business Day after the Net Disposition Proceeds thereof are utilized for repayments of the Secured 2026 Notes (or, if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) or reinvested in excess Collateral, in each case, in accordance with the terms of $500,000 in the aggregate in Secured 2026 Notes Indenture (or the indenture or documents governing any fiscal yearIndebtedness permitted hereunder to be secured by a Pari Passu Second Lien), other than Inventory in prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an aggregate amount equal to the Net Disposition Proceeds lesser of (A) 100% of such saleNet Proceeds minus amounts so utilized for repayments of the Secured 2026 Notes (or, such repayments if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be made promptly but secured by a Pari Passu Second Lien) or reinvested in Collateral, in each case, in accordance with the terms of the Secured 2026 Notes Indenture (or the indenture or documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) and (B) the aggregate outstanding principal amount of the Loans or (ii) if a Cash Dominion Event has occurred and is continuing, the Company shall, within one (1) Business Day following the consummation of the Notes Priority Collateral Prepayment Event, utilize such Net Proceeds to repay all or any portion of the Loans or deposit any remaining Net Proceeds (after giving effect to any repayment of the Loans) into the Asset Sale Reserve Account (for purposes of this clause (ii), the period commencing on the date of consummation of the applicable Notes Priority Collateral Prepayment Event and ending on the earlier of (A) the date that such Cash Dominion Event is no event more than three longer continuing and (3B) the date that is 365 days thereafter (provided that if the Parent or any of its Restricted Subsidiaries enters into a written agreement committing it to reinvest such Net Proceeds after such 365-day period as permitted by the Secured 2026 Notes Indenture, then such 365-day period shall be extended for an additional period not to exceed 180 days), the “Asset Sale Reserve Period”).
(d) Within five (5) Business Days following receipt of such net proceeds, and until the date of paymentincurrence by any Credit Party or any Restricted Subsidiary of any Indebtedness (other than Indebtedness permitted by Section 9.2), the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to 100% of the net proceeds received by such proceeds shall be held Person in trust for Agentconnection with such incurrence. The foregoing provisions of this Section 5.6(d) shall not be deemed to be implied consent to any such sale incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofAgreement.
(e) Other than pursuant If, at the end of any Excess Cash Test Date there are Revolving Credit Loans and/or Revolving L/C Obligations outstanding and the Credit Parties and their Restricted Subsidiaries have Excess Cash exceeding $25,000,000, the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to any issuance the lesser of Equity Interests of Borrowers (i) contemplated the amount of such Excess Cash minus $25,000,000 minus the amount of any wires initiated or ACH transfers issued by Section 6.5(d)any Credit Party in the ordinary course of business after the end of such Excess Cash Test Date and prior to 12:00 P.M., New York City time, on the date that such prepayment is required to be made and (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice the aggregate principal amount of such issuance of Equity Interests, Revolving Credit Loans and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the Revolving L/C Obligations then outstanding balance of by 12:00 P.M., New York City time on the Term Loan exceeds next Business Day; provided that prepayments under this Section 5.6(e) shall not require the Term Loan Collateral Amount at the time of such issuance of Equity InterestsCompany to pay any breakage under Section 5.21. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests All prepayments made under this Section 5.6 shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) made first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) prepay any Protective Advances, second, to prepay the remaining Advances Revolving Credit Loans (including cash collateralization the Swingline Loans), third, to the payment of all any Revolving L/C Obligations relating then outstanding, and fourth, to any Cash Collateralize outstanding Letters of Credit, without a corresponding permanent reduction in the Revolving Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofCommitments.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event of any Collateral resulting in Net Disposition Proceeds in excess termination of $500,000 in all the aggregate in any fiscal yearRevolving Credit Commitments, other than Inventory in the Ordinary Course Borrower shall, on the date of Business such termination, repay or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in prepay all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit and/or deposit an amount equal to the Net Disposition Proceeds L/C Exposure in cash in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties. In the event of any partial reduction of the Revolving Credit Commitments, then (i) at or prior to the effective date of such salereduction, the Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii) if the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment after giving effect to such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsreduction or termination, and until then the Borrower shall, on the date of paymentsuch reduction or termination, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied repay or prepay Revolving Credit Borrowings or Swingline Loans (xor a combination thereof) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including and/or replace or cash collateralization of all Obligations relating to any collateralize outstanding Letters of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the tenth day following the receipt of any Net Cash Proceeds of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f); provided that, if the provisions Borrower shall deliver to the Administrative Agent a certificate of Section 3.2(b)a Financial Officer of the Borrower to the effect that the Borrower and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a portion thereof specified in such certificate) within 330 days after receipt thereof, provided however to acquire real property, equipment or other assets to be used in the business of the Borrower and the Subsidiaries, and certifying that if no Default or Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds of such repayments Asset Sale (or the portion thereof specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so applied by the end of such 330-day period, at which time a prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so applied.
(c) In the event and on each occasion that an Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the occurrence of such Equity Issuance, apply 50% of the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section 2.13(f).
(d) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending on December 31, 2004) and (ii) the date on which the financial statements with respect to such fiscal year are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(f) in an aggregate principal amount equal to 50% of Excess Cash Flow for such fiscal year; provided, however, that such prepayment shall not be required if the Senior Leverage Ratio at the end of such fiscal year shall be less than 1.25 to 1.00.
(e) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other disposition of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (including Other Permitted Subordinated Debt, but excluding all other Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the first Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f) (and if, in the case of any issuance or other disposition of Other Permitted Subordinated Debt, there are no Term Loans outstanding after giving effect to any such prepayment, the remaining Net Cash Proceeds thereof, if any, shall be applied to cash collateralize repay outstanding Revolving Loans to the extent thereof); provided that, if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect that the Borrower and the Subsidiaries intend to apply the Net Cash Proceeds from the issuance or disposition of any Obligations related to outstanding Letters of Credit last) Other Permitted Subordinated Debt (or a portion thereof specified in such order as Agent may determinecertificate) (x) to finance the cash consideration payable in a Permitted Acquisition to be consummated substantially contemporaneously with the receipt thereof or (y) to fund Capital Expenditures within 365 days after the receipt thereof, and in either case certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds of such issuance or other disposition of Other Permitted Subordinated Debt (or the portion thereof specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so applied (I) within 15 days, in the case of clause (x) above, or (II) by the end of such 365-day period, in the case of clause (y) above, at which time a prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so applied.
(f) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11(a); provided, however, that any such mandatory prepayment pursuant to Section 2.13(d) shall be applied first, to the scheduled installments due in respect of the Term Loans within the 12 months following such prepayment and then pro rata against the remaining scheduled installments of principal due in respect to the Term Loans.
(g) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid, and if such notice relates to a mandatory prepayment pursuant to Section 2.13(d), that fact shall be conspicuously indicated in such notice. All prepayments of Borrowings under this Section 2.13 shall be subject to Borrowers’ ability Section 2.16, but shall otherwise be without premium or penalty.
(h) Amounts to re-borrow be applied pursuant to this Section 2.13 or Section 2.11(a) to the prepayment or repayment of Term Loans and Revolving Advances Loans shall be applied, as applicable, first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the case may be, immediately and/or shall be deposited in the Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in each case on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date) until all outstanding Term Loans or Revolving Loans, as the case may be, have been prepaid or until all the allocable cash on deposit with respect to such Loans has been exhausted. For purposes of this Agreement, the term "Prepayment Account" shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (h). The Administrative Agent will, at the terms hereof.
request of the Borrower, invest amounts on deposit in the Prepayment Account in Cash Equivalents that mature prior to the last day of the applicable Interest Periods of the Eurodollar Term Borrowings or Eurodollar Revolving Borrowings to be prepaid, as the case may be; provided, however, that (bi) Notwithstanding the foregoingAdministrative Agent shall not be required to make any investment that, with respect in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any Net Disposition Proceeds which would otherwise give rise law, statute, rule or regulation and (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a prepayment under Section 2.20(a), so long as no Default or Event of Default shall have occurred and be continuing and continuing. The Borrower shall indemnify the Borrowing Administrative Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds for any losses relating to the investments so that the amount available to prepay Eurodollar Borrowings on the last day of the applicable Loan Party’s Interest Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on such investments, the Prepayment Account shall not bear interest. Interest or its Subsidiary’s election to reinvest all or any portion of profits, if any, on such Net Disposition Proceeds investments shall be deposited in fixed or capital assets or other assets useful to the business Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds Loans has been accelerated pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in Article VII, the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving AdvanceAdministrative Agent may, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property apply all amounts on deposit in the Prepayment Account to determine if the then outstanding balance satisfy any of the Term Loan exceeds Obligations. The Borrower hereby grants to the Term Loan Collateral Amount at Administrative Agent, for its benefit and the time of such issuance of Equity Interests. If Agent does not order an appraisal benefit of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property Issuing Bank and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term LoanLenders, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan a security interest in the inverse order of Prepayment Account to secure the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofObligations.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc)
Mandatory Prepayments. If Agent is not obligated to make Net Proceeds available to Borrower for Restoration and determines not to make any such Net Proceeds available to Borrower for Restoration, on the next occurring Monthly Payment Date following the date on which (a) When Agent actually receives any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofProceeds, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of has determined that such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by against the Debt, Borrower shall prepay, or authorize Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such apply Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advanceprepayment of, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Debt in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Proceeds. Except during an Event of Default, such Net Proceeds shall be applied by Agent as follows in the case following order of priority: First, to any other amounts (other than principal and interest) then due and payable under the Loan Documents, including any costs and expenses of Agent and Lenders in connection with such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstprepayment); Second; accrued and unpaid interest at the Interest Rate; and Third, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, Outstanding Principal Balance. Notwithstanding anything herein to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)contrary, provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no Spread Maintenance Premium or any other prepayment premium, penalty or fee shall be applied to cash collateralize due in connection with any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than prepayment made pursuant to this Section 2.4.3. In no event shall any issuance of Equity Interests of Borrowers (iSpread Maintenance Premium be due in connection with any prepayment with Net Proceeds or pursuant to Section 5.4(c) contemplated by made after the Spread Maintenance Date. Any partial principal prepayment under this Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests 2.4.3 shall be applied to the Revolving Advances. If Agent orders an appraisal last payments of principal due under the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Mandatory Prepayments. (i) If, at any time or for any reason, the amount of Obligations owed by Borrower to Lender pursuant to Sections 2.1 is greater than the Dollar limitations set forth in Sections 2.1, (an “Overadvance”), Borrower immediately shall pay to Agent, in cash, the amount of such excess, which amount shall be used by Agent to reduce the Obligations in accordance with the priorities set forth in Section 2.4(b). In addition, Borrower hereby promises to pay the Obligations (including principal, interest, fees, costs, and expenses) in Dollars in full to Agent as and when due and payable under the terms of this Agreement and the other Loan Documents.
(ii) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any Disposition by Borrower or any of its Subsidiaries of property or assets (excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a) When any through (f), (h), or (i) of the definition of Permitted Dispositions), Borrower sells or otherwise disposes shall prepay the outstanding principal amount of any Collateral resulting the Obligations in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under accordance with Section 7.1, Borrowers shall repay the Advances 2.4(f)(i) in an amount equal to 100% of the Net Disposition Cash Proceeds (including insurance proceeds and condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) the Net Cash Proceeds of such saleDisposition are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (C) Borrower or its Subsidiaries, as applicable, complete such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 180 days after the initial receipt of such net proceedsmonies, Borrower and until its Subsidiaries shall have the date option to apply such monies to the costs of paymentreplacement of the property or assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, such proceeds monies shall be held paid to Agent and applied in trust accordance with Section 2.4(f). Nothing contained in this Section 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(iii) Promptly upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (except for AgentIndebtedness permitted under Section 7.1) Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The foregoing provisions of this Section 2.4(e)(iii) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments of this Agreement.
(iv) Promptly upon the issuance by Borrower or any of its Subsidiaries of any Stock (except for (A) the issuance of Stock by Borrower to any Permitted Holder, (B) the issuance of Stock of Borrower to directors, officers and employees of Borrower and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors) Borrower shall be applied (x) first, to prepay the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last2.4(f) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve an amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount 50% of the Net Disposition Cash Proceeds (received by such Person in connection with such issuance; provided, however, that if the Leverage Ratio of Borrower and its Subsidiaries as of the end of the fiscal quarter most recently ended prior to the date of the issuance of such Stock as to which financial statements were required to be delivered pursuant to this Agreement was equal to or less than 2.0:1.0, then no prepayment in respect of such portion thereof) to pay the actual cost issuance of reinvestment and the reserve with respect to such amount Stock shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) required. The provisions of this Agreement have been satisfied and (iiiSection 2.4(e)(iv) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction such issuance otherwise prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement. For the avoidance of doubt, this Section 2.4(e)(iv) shall not apply to Qualifying IPO.
(cv) Borrowers Within 10 days of delivery to Agent of audited annual financial statements pursuant to Section 6.3(b), commencing with the delivery to Agent of the financial statements for Borrower’s fiscal year ended December 31, 2015 or, if such financial statements are not delivered to Agent on the date such statements are required to be delivered pursuant to Section 6.3(b), within 10 days after the date such statements were required to be delivered to Agent pursuant to Section 6.3(b), Borrower shall (A) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was greater than 1.50:1.00, prepay the outstanding principal amount of the Term Loans Obligations in accordance with Section 2.4(f) in an amount equal to twenty-five percent (25%) 50% of the Excess Cash Flow of Borrower and its Subsidiaries for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount and (B) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was 1.50:1.0 or less, then no prepayment shall be applied required. The foregoing to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so deliveredcontrary notwithstanding, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)at Agent’s election, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole and absolute discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance remaining amount of the capital expenditures projected to be made during such fiscal year exceeds the remaining amount of the Capex Term Loan exceeds Commitments at such time, then Agent may permit Borrower to reduce the Term Loan Collateral Amount at amount of the time mandatory prepayment that would otherwise be due and payable pursuant to this Section 2.4(e)(v) to the extent of such issuance of Equity Interests. If Agent does excess (but not order to an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan amount that is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bless than $0), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Loan and Security Agreement (Freshpet, Inc.), Loan and Security Agreement (Freshpet, Inc.), Loan and Security Agreement (Freshpet, Inc.)
Mandatory Prepayments. (a) When If at any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in time, (x) the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Revolving Credit at such time or (y) the aggregate principal amount of Revolving Credit Outstandings plus the Term Outstandings exceed the aggregate Maximum Credit at such time, the Borrower shall, in any fiscal yeareach case, forthwith, upon notification by the Administrative Agent, prepay the Swing Loans first and then the other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the Net Disposition Proceeds aggregate outstanding Swing Loans and the other Revolving Loans, the Borrower shall Cash Collateralize the Letter of Credit Obligations in the manner set forth in Section 10.5 in an amount equal to 101% of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agentexcess. The foregoing shall not be deemed to be implied consent to If any such sale otherwise prohibited by excess remains after repayment in full of the terms aggregate outstanding Swing Loans and conditions hereof. Such repayments the other Revolving Loans and the Cash Collateralization of the Letter of Credit Obligations as provided above, the Borrower shall be applied (x) first, to the outstanding principal installments of then prepay the Term Loan then outstanding in the inverse order of the maturities thereof, and (y) second, an amount equal to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofexcess.
(b) Notwithstanding If (x) at any time during a Cash Dominion Period or (y) in respect of any Disposition that would result in the foregoingoccurrence of a Cash Dominion Period, with respect to any Loan Party or any of its Subsidiaries receives any Net Cash Proceeds arising from any Disposition Proceeds which would otherwise give rise in respect of any Current Asset Collateral outside of the ordinary course of business, subject to a prepayment under Section 2.20(a)the Intercreditor Agreement, so long as no Event of Default the Borrower shall have occurred and be continuing and the Borrowing Agent shall have notified Agent promptly (but in any event within two five (25) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to receipt) prepay the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent 100% of such Net Cash Proceeds (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31and, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding extent such Net Cash Proceeds exceed the aggregate principal installments amount of the Term Loan in the inverse order Revolving Loans outstanding, Cash Collateralize Letters of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit in an amount equal to one hundred percent up to 101% of the aggregate maximum drawable amount of such Letters of Credit).
(100.00%c) Subject to Section 3.5 hereof, all such payments in respect of the Loans pursuant to this Section 2.9 shall be without premium or penalty. All interest accrued on the principal amount of the Loans paid pursuant to this Section 2.9 shall be paid, or may be charged by the Administrative Agent to any loan account(s) of such cash proceeds in the case Borrower, at the Administrative Agent’s option, on the date of such incurrence or issuance of Indebtednesspayment. Such repayments will Interest shall accrue and be applied (x) firstdue, until the next Business Day, if the amount so paid by the Borrower to the outstanding principal installments bank account designated by the Administrative Agent for such purpose is received in such bank account after 3:00 p.m.
(d) At all times after the occurrence and during the continuance of Cash Dominion Period and notification thereof by the Term Loan in the inverse order of the maturities thereof and (y) second, Administrative Agent to the remaining Advances Borrower (including cash collateralization of all Obligations relating subject to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b10.3 and to the terms of the Security Agreement), provided however on each Business Day, at or before 1:00 p.m., the Agent shall apply all Same Day Funds credited to the Concentration Account and all amounts received pursuant to Section 2.9(b), first to pay any fees or expense reimbursements then due to the Administrative Agent, the Issuers and the Lenders (other than in connection with Cash Management Obligations, Obligations in respect of Secured Hedge Agreements or any Revolving Commitment Increases), pro rata, second to pay interest due and payable in respect of any Revolving Loans, Swing Loans and any Protective Advances that if no Default or Event may be outstanding, pro rata, third to prepay the principal of Default has occurred any Protective Advances that may be outstanding, pro rata, fourth to prepay the principal of the Revolving Loans, Swing Loans and is continuing, such repayments shall be applied to cash collateralize any Obligations related to Cash Collateralize outstanding Letters Letter of Credit last) Obligations, pro rata, fifth to pay interest due and payable in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to respect of any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d)Term Loans, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestspro rata, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied sixth to the Revolving Advances. If Agent orders an appraisal Borrower or such other Person entitled thereto or as directed by a court of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofcompetent jurisdiction.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes The Borrowers shall prepay the Loans in accordance with the following:
(i) Substantially concurrently with the incurrence of any Collateral resulting in Net Disposition Proceeds in excess Indebtedness by any Loan Party or any of $500,000 in the aggregate in any fiscal year, its Subsidiaries (other than Inventory in the Ordinary Course of Business or Dispositions otherwise Indebtedness permitted under Section 7.19.01), the Borrowers shall repay prepay the Advances Term Loans together with the applicable Prepayment Premium in an amount equal to one hundred percent (100%) of the applicable Net Debt Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(i) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the terms of this Loan Agreement.
(ii) Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition under Section 9.04(b), the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Disposition Proceeds of from such saleDispositions that, such repayments in the aggregate, exceed $500,000 per fiscal year, to be made promptly but applied as set forth in no event more than three Section 4.02(b); provided, however, that the Borrowers may, at Administrative Borrower’s option by written notice to the Administrative Agent on or prior to the date that is five (35) Business Days following after receipt of such net proceedsNet Disposition Proceeds, and until within twelve (12) months after such event, reinvest or commit to reinvest such Net Disposition Proceeds in assets to be used in the date business of payment, such proceeds shall be held in trust for Agent. The foregoing the Borrowers so long as (A) the aggregate amount of Net Disposition Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (ii) shall not be deemed to be implied consent to exceed $2,500,000 during any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied fiscal year, (xB) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied and the Administrative Borrower certifies in writing to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as the Administrative Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as that no Default or Event of Default shall have has occurred and be is continuing and the Borrowing Agent shall have notified Agent within two (2C) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election are held in an account subject to reinvest all or any portion of such Net Disposition Proceeds an Account Control Agreement while awaiting reinvestment. Nothing in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds this Section 4.02(a)(ii) shall be applied by Agent construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) terms of this Agreement have been satisfied and Loan Agreement.
(iii) Borrowers agree to use the proceeds Within five (5) Business Days of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to receipt by any Disposition or other transaction prohibited by the terms and conditions of this Agreement Loan Party or any Other Document.
(c) of its Subsidiaries of any proceeds from Casualty Events that, in the aggregate, exceed $500,000 per fiscal year, the Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Casualty Proceeds, to be applied as set forth in Section 4.02(b); provided, however, that the Borrowers may, at Administrative Borrower’s option by written notice to the Agents no later than twelve (12) months following the occurrence of the Casualty Event resulting in such Net Casualty Proceeds, apply such Net Casualty Proceeds to the rebuilding or replacement of such damaged, destroyed or condemned assets or property or otherwise in the case business of Borrowers so long as such Net Casualty Proceeds are in fact used or are committed to be used to rebuild or replace the damaged, destroyed or condemned assets or property or otherwise useful in the business of Borrowers within such twelve (12) months following the receipt of such incurrence or issuance Net Casualty Proceeds, with the amount of Indebtedness. Such repayments will Net Casualty Proceeds not so used after such period to be applied as set forth in Section 4.02(b); so long as (xA) firstthe aggregate amount of Net Casualty Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (iii) shall not exceed $2,500,000 during any fiscal year, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (yB) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) and the Administrative Borrower certifies in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied writing to the Revolving Advances. If Administrative Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, continuing and (C) such repayments Net Casualty Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment. Nothing in this Section 4.02(a)(iii) shall be applied construed to cash collateralize permit or waive any Obligations related to outstanding Letters Default or Event of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofDefault arising, directly or indirectly, from any Casualty Event.
(fiv) All Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of (A) any Net Equity Proceeds which exceed $20,000,000 in the aggregate over the life of this Loan Agreement from one or more Specified Issuances, the Borrowers shall prepay the Term Loans in an amount equal to fifty percent (50%) of such Net Equity Proceeds, to be applied as set forth in Section 4.02(b) or (B) any Net Equity Proceeds from any Equity Cure Investment, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of such Net Equity Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(iv) shall be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any issuance of Capital Stock that is not permitted under the terms of this Loan Agreement.
(v) Within five (5) Business Days of the receipt by or on behalf of any Loan Party or any Affiliate of any Loan Party of the net cash proceeds received of any tax refunds, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of all such net cash proceeds of tax refunds, to be applied as set forth in Section 4.02(b).
(vi) For each fiscal year of Spark, commencing with the fiscal year ending December 31, 2019 (limited to the period from the Closing Date through December 31, 2019 for such fiscal year), on the date that is five (5) Business Days after the earlier of (A) the date upon which annual financial statements are required to be delivered pursuant to Section 8.01(c) for such fiscal year and (B) the date upon which annual financial statements are actually delivered pursuant to Section 8.01(c) for such fiscal year, (x) the Administrative Borrower shall deliver to the Administrative Agent a written calculation of Consolidated Excess Cash Flow for the applicable fiscal year, certified by an Authorized Officer of the Borrower, and (y) the Borrowers shall prepay the Term Loan in amounts attributable to the Term Loan equal to the Term Loan ECF Percentage of Consolidated Excess Cash Flow for such fiscal year; provided that all (x) voluntary prepayments of the Term Loans paid in cash during the applicable fiscal year and (y) voluntary prepayments of Revolving Loans paid in cash during the applicable fiscal year to the extent accompanied by a permanent reduction of the Revolving Loan Commitment, will reduce the amount of prepayments required to be made pursuant to this Section 4.02(a)(vi) on a dollar-for-dollar basis. Calculations of amounts payable under this Section 4.02(a)(vi) shall be based on the annual financial statements for Spark and its Subsidiaries for the applicable fiscal year. Prepayments of Term Loan under this Section 4.02(a)(vi) shall be applied, in each case, in the inverse order of maturity on a dollar for dollar basis, and shall be made, in each case, pro rata among the applicable Lenders.
(vii) Notwithstanding anything to the contrary herein, immediately upon any acceleration of any Obligations pursuant to Section 10.02, (whether before, during or after the commencement of any proceeding under the Bankruptcy Code involving the Borrowers or Agent any other Loan Party), the Borrowers shall immediately repay all the Loans together with the applicable Prepayment Premium, unless only a portion of the Loans is so accelerated (in which case the portion so accelerated shall be so repaid together with the applicable Prepayment Premium). The parties hereto acknowledge and agree that the Prepayment Premium referred to in this Section 4.02(a)(vii) (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowersis additional consideration for providing the Loans, or (ii) as constitutes reasonable liquidated damages to compensate the Lenders for (and is a result proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an early prepayment of the Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), and (iii) is not a penalty to punish the Borrowers for their early prepayment of the Loans or for the occurrence of any taking or condemnation Event of Default.
(viii) Concurrently with any assets or property Change of Control, the Borrowers shall be applied in accordance repay all of the Loans together with Section 6.6the applicable Prepayment Premium and all other outstanding Obligations.
Appears in 3 contracts
Sources: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)
Mandatory Prepayments. (ai) When If at any Borrower sells or otherwise disposes time, the aggregate principal amount of Total Outstandings (excluding the face amount of any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 Credit that are Cash Collateralized or back-stopped to the reasonable satisfaction of the Administrative Agent) exceeds the Line Cap, the Borrowers shall within one Business Day, upon notification by the Administrative Agent, prepay the Swing Line Loans first and then prepay (or Cash Collateralize, in the aggregate in any fiscal yearamount required by Section 2.03(f), other than Inventory in the Ordinary Course case of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay Letters of Credit) the Advances other Loans then outstanding in an amount equal to such excess; provided that nothing in this clause (b)(i) shall reduce the Net Disposition Proceeds Revolving Credit Commitments.
(ii) Subject to Section 3.04 hereof, all such payments in respect of such salethe Loans pursuant to this Section 2.05 shall be without premium or penalty. All interest accrued on the principal amount of the Loans paid pursuant to this Section 2.05 shall be paid, such repayments or may be charged by the Administrative Agent to be made promptly but in no event more than three (3any loan account(s) Business Days following receipt of such net proceedsthe Borrowers, and until at the Administrative Agent’s option, on the date of such payment. Interest shall accrue and be due, until the next Business Day, if the amount so paid by the Borrowers to the bank account designated by the Administrative Agent for such proceeds purpose is received in such bank account after 3:00 p.m., New York City time.
(iii) At all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Administrative Borrower, on each Business Day, the Administrative Agent shall be apply all same day funds in excess of $2,000,000 (other than Excluded Funds held in trust for Excluded Accounts) credited to the Concentration Account and all amounts received pursuant to this Section 2.05(b) to one or more accounts maintained by Administrative Agent or such other account as directed by the Administrative Agent. The foregoing shall not be deemed to be implied consent to any All amounts received in such sale otherwise prohibited by the terms and conditions hereof. Such repayments account shall be applied (xand allocated) first, to by the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Administrative Agent in accordance with the provisions of Section 3.2(b), 8.04; provided however that if no Default or Event of Default has occurred and is continuing, such repayments amounts shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determineclauses “First”, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof“Fourth” or “Ninth” through “Last” thereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Abl Credit Agreement (Utz Brands, Inc.), Credit Agreement (Utz Brands, Inc.), Abl Credit Agreement (Collier Creek Holdings)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in No later than the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days tenth calendar day following receipt of such net proceeds, and until the date of paymentreceipt by any Obligor or any of its Restricted Subsidiaries of any Net Asset Sale Cash Proceeds from any Asset Sale, the Company shall apply all such proceeds shall be held Net Asset Sale Cash Proceeds to repay any outstanding Loans as set forth in trust for Agent. The foregoing shall not be deemed Section 2.13(a); provided that, if the Borrower provides written notice to be implied consent to the Administrative Agent within seven calendar days of the date any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstNet Asset Sale Cash Proceeds are so received of its intention to undertake such an investment, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), then so long as no Event of Default shall have occurred and be continuing and continuing, the Borrowing Agent Company shall have notified Agent within two (2) Business Days following receipt the option, directly or indirectly or through one or more of its Restricted Subsidiaries, to invest such Net Disposition Asset Sale Cash Proceeds within twelve months of receipt thereof in assets of the applicable Loan Party’s or general type used in the business of the Parent and its Subsidiary’s election to reinvest all or Restricted Subsidiaries; provided, further, that, if any portion of such Net Disposition Asset Sale Cash Proceeds in fixed or capital assets or other assets useful to have not been so reinvested at the business end of such twelve-month period, the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Borrower shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve apply an amount equal to the amount of such Net Disposition Asset Sale Cash Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers that have not been so reinvested as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent set forth in Section 8.2 or 8.3 2.13(a).
(as applicableb) If at any time, the Aggregate Total Exposure exceeds the aggregate Revolving Commitments then in effect, the Borrower shall forthwith prepay first, Loans, and second Cash Collateralize the outstanding amount of this Agreement have been satisfied and (iii) Borrowers agree Letter of Credit Usage at the Agreed L/C Cash Collateral Amount, to use the proceeds of extent necessary so that the Aggregate Total Exposure shall not exceed the Revolving Advances to pay Commitments then in effect (or, in the cost case of Letter of Credit Usage, such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by amounts are fully Cash Collateralized in compliance with the terms and conditions of this Agreement or any Other DocumentAgreed Cash Collateral Amount).
(c) Borrowers shall prepay If, after giving effect to any termination of or reduction of the outstanding Revolving Commitments, the Letter of Credit Sublimit exceeds the amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31Revolving Commitments, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount sublimit shall be applied to automatically reduced by the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances excess (including cash collateralization of all Obligations relating a corresponding reduction to any outstanding Letters each Issuing Bank’s Letter of Credit in accordance with Issuer Sublimit (ratably) unless otherwise agreed by the provisions of Section 3.2(bBorrower and each applicable Issuing Bank), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Mandatory Prepayments. (a) When No later than the third (3rd) Business Day following the date of receipt by Holdings or any Borrower sells or otherwise disposes of its Subsidiaries of any Collateral resulting Net Cash Proceeds of any sale or disposition by Holdings or any of its Subsidiaries of any assets in Net Disposition Proceeds in excess of an aggregate amount exceeding $500,000 in 250,000, the aggregate in any fiscal year, other than Inventory in Borrower shall prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an amount equal to the Net Disposition Cash Proceeds of such salesale or disposition; provided, such repayments to be made promptly but in no event more than three that (3i) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing Borrower shall not be deemed required to be implied consent prepay the Obligations with respect to any such sale otherwise prohibited by proceeds from the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments sales or dispositions of the Term Loan assets in the inverse order ordinary course of the maturities thereofbusiness (including obsolete or worn-out equipment no longer useful in its business), and (yii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Default or Event of Default shall have occurred and be continuing and at the Borrowing Agent time of the receipt of proceeds pursuant to this subsection (a) or at the proposed time of the reinvestment of such proceeds, the Borrower shall have notified Agent the option, upon written notice to the Administrative Agent, directly or (x) in the case of proceeds received by a Loan Party, through one or more of its Subsidiaries that is a Loan Party or (y) in the case of proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such proceeds within two one hundred eighty (2180) Business Days following days of receipt of such Net Disposition Proceeds thereof in assets of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds general type used in fixed or capital assets or other assets useful to the business of the Borrower and its Subsidiaries so long as such proceeds received by a Loan Parties Party are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (a) shall also not apply solely to the extent that (A) the sale or disposition was consummated by any Insurance Subsidiary (or Subsidiary thereof) of any of such Insurance Subsidiary’s assets (or the assets of a Subsidiary thereof) and their Subsidiaries, then (B) the dividend of such Net Disposition Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (a) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations in accordance with this subsection (a). Any such prepayment shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds accordance with subsection (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicablef) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection.
(cb) Borrowers No later than the third (3rd) Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the outstanding amount of the Term Loans Obligations in an amount equal to twenty-five percent (25%) of Excess all such Net Cash Flow for each fiscal year beginning with the fiscal year ending December 31Proceeds; provided, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent long as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has shall have occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount continuing at the time of such issuance the receipt of Equity Interests. If Agent does not order an appraisal proceeds pursuant to this subsection (b) or at the proposed time of the Equipment and Real Propertyreinvestment of such proceeds, then one hundred percent (100.00%) of the net cash proceeds received from Borrower shall have the issuance of Equity Interests shall be applied option, upon written notice to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term LoanAdministrative Agent, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied directly or (x) first, to the outstanding principal installments of the Term Loan in the inverse order case of the maturities thereof until the outstanding balance proceeds received by a Loan Party, through one or more of the Term its Subsidiaries that is a Loan is equal to the Term Loan Collateral Amount and Party or (y) secondin the case of proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such proceeds within one hundred eighty (180) days of receipt thereof in assets of the remaining Advances general type used in the business of the Borrower and its Subsidiaries so long as such proceeds received by a Loan Party are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (including cash collateralization b) shall also not apply solely to the extent that (A) the Net Cash Proceeds of all the casualty insurance policies or eminent domain, condemnation or similar proceedings were received by any Insurance Subsidiary (or Subsidiary thereof) and (B) the dividend of such Net Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (b) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bthis subsection (b), provided however that if no Default or Event of Default has occurred and is continuing, . Any such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with subsection (f) of this Section.
(c) No later than the first (1st) Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any issuance of Indebtedness by Holdings or any of its Subsidiaries, the Borrower shall prepay the Obligations in an amount equal to all such Net Cash Proceeds; provided, that the Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 6.67.1; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (c) shall also not apply solely to the extent that (A) the Net Cash Proceeds of such Indebtedness were incurred and received by any Insurance Subsidiary (or Subsidiary thereof) and (B) the dividend of such Net Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (c) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations in accordance with this subsection (c). Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(d) No later than the first (1st) Business Day following the date of receipt by the Borrower or any of its Subsidiaries of any proceeds from key man life insurance policies, the Borrower shall prepay the Obligations in an amount equal to all such proceeds. Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(e) No later than the first (1st) Business Day following the occurrence of an Equity Monetization Event, the Borrower shall prepay the Obligations in full. Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(f) Any prepayments made by the Borrower pursuant to subsection (a), (b), (c), (d) or (e) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents and any amounts payable to the Lenders pursuant to Section 2.15; and second, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans on a pro rata basis (excluding the final payment due on the Maturity Date); provided, that, after all regularly scheduled amortization payments have been made in full in accordance with Section 2.4, any remaining amounts required to be prepaid under this Section 2.7 shall be applied as a prepayment to the final payment that would otherwise be due on the Maturity Date until paid in full.
(g) The Borrower shall notify the Administrative Agent by written notice of any prepayment pursuant to clauses (a), (b), (c), (d) or (e) of this Section 2.7 not later than 11:00 a.m. (New York City time) one (1) Business Day before the date of prepayment. Each such notice shall specify the prepayment date (which shall be a Business Day), the principal amount of the Loans to be prepaid and a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. All prepayments of the Loans pursuant to clauses (a), (b), (c), (d) or (e) of this Section 2.7 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(h) To the extent that this Agreement and the Note Purchase Agreement both require mandatory prepayments for the events described in clauses (a), (b), (c) or (d) of this Section 2.7, the Borrower may pay a portion of the Net Cash Proceeds (or proceeds from key man life insurance policies, as applicable) derived from such events, determined on a Ratable Basis (as defined in the Intercreditor Agreement), to the NPA Agent to prepay Indebtedness (but not any portion of the Make-Whole Amount (as defined in the Note Purchase Agreement)) in accordance with the terms of the Note Purchase Agreement. To the extent that this Agreement and the Note Purchase Agreement both require mandatory prepayments following the occurrence of an Equity Monetization Event as described in clause (e) of this Section 2.7, the parties agree that such mandatory prepayments shall be made on a Ratable Basis (as defined in the Intercreditor Agreement) subject to and in accordance with the Intercreditor Agreement (including, for the avoidance of doubt, Section 5.15(a) of the Intercreditor Agreement).
Appears in 3 contracts
Sources: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.), Term Loan Agreement (Root, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in No later than the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited receipt by the terms and conditions hereof. Such repayments shall be applied Borrower or any of its Subsidiaries of proceeds of any sale or disposition by the Borrower or such Subsidiary of any of its assets (xexcluding (i) first, to the outstanding principal installments sales of the Term Loan inventory in the inverse order ordinary course of the maturities thereofbusiness, and (yii) secondsales of worn-out, to the remaining Advances obsolete equipment, (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if iii) so long as no Default or Event of Default has occurred and is continuing, sales of assets the proceeds of which are invested into the businesses of the Borrower and its Subsidiaries within 180 days after such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastassets are sold and (iv) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize other sales of assets of the Borrower or any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance its Subsidiaries with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures an aggregate book value not to exceed $4,000,000 per fiscal year or 1,000,000 in any Fiscal Year) the Borrower shall prepay the Loans (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance without any associated permanent reduction of the Term Loan exceeds Commitments) in an amount equal to all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Term Loan Collateral Amount at the time of Borrower or such issuance of Equity InterestsSubsidiary in connection therewith (in each case, paid to non-Affiliates). If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests Any such prepayment shall be applied to in accordance with Section 2.13(d).
(b) If the Revolving Advances. If Agent orders an appraisal Borrower or any of its Subsidiaries issues any debt securities (other than Indebtedness permitted under Section 7.1), then no later than the Business Day following the date of receipt of the Equipment and Real Property and proceeds thereof, Borrower shall prepay the Term Loan Collateral Amount exceeds the then outstanding balance Loans (without any associated permanent reduction of the Term LoanCommitments) in an amount equal to all such proceeds, then one hundred percent (100.00%) net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such net cash proceeds received from the issuance of Equity Interests prepayment shall be applied to in accordance with Section 2.13(d).
(c) No later than the Revolving Advances. If Agent orders an appraisal Business Day following the date of receipt by the Equipment and Real Property and the then outstanding balance Borrower or any of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) its Subsidiaries of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments any settlement of the Term Loan or payment in the inverse order respect of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations any property or casualty insurance claim or any condemnation proceeding relating to any outstanding Letters asset of Credit the Borrower or any of its Subsidiaries in accordance with respect of which the provisions of Section 3.2(b)associated proceeds exceed $1,000,000 (excluding, provided however that if so long as no Default or Event of Default has occurred and is continuing, proceeds which are invested into the businesses of the Borrower and its Subsidiaries within 180 days after the receipt of such repayments proceeds) the Borrower shall be applied prepay the Loans in an amount equal to cash collateralize any Obligations related all such proceeds and payable by such Borrower or such Subsidiary in connection therewith (in each case, paid to outstanding Letters of Credit last) in non-Affiliates). Any such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.62.13(d).
(d) Subject to Section 8.2, any prepayments made by the Borrower pursuant to Sections 2.13(a), (b) or (c) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders and the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata Shares of such fees and expenses; third, to interest then due and payable on the Loans made to Borrower, pro rata to the Lenders based on their respective Pro Rata Shares; fourth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fifth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Pro Rata Shares, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Pro Rata Shares and seventh, to the extent that an Event of Default has occurred and is continuing, to cash collateralize the Letters of Credit in accordance with Section 2.23(g) in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon.
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.9 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. 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, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 2.23(g) hereof.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Mandatory Prepayments. (ai) When If at any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in time the aggregate in any fiscal year, other than Inventory in outstanding balances of the Ordinary Course Revolving Loan exceeds the lesser of Business or Dispositions otherwise permitted under Section 7.1(A) the Maximum Amount less the aggregate outstanding Swing Line Loan at such time and (B) the Aggregate Borrowing Base less the aggregate outstanding Swing Line Loan at such time, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess. Furthermore, if, at any time, the outstanding balance of the Revolving Loan to any Borrower exceeds such Borrower’s separate Borrowing Base less the outstanding balance of the Swing Line Loan to such Borrower, the applicable Borrower shall immediately repay its Revolving Credit Advances in the amount of such excess (and, to the extent necessary, provide cash collateral for its Letter of Credit Obligations as described above), provided, that as to any Revolving Advances consisting of H&E Great Northern Advances included in such Revolving Loan balance, “such Borrower’s separate Borrowing Base” shall mean the Great Northern Borrowing Base.
(ii) Immediately upon receipt by any Credit Party of proceeds of any asset disposition (excluding proceeds of dispositions of Equipment Inventory and P&E permitted by Section 6.8 having an aggregate Net Book Value in any one Fiscal Year, not exceeding $500,000) or any sale of Stock of any Subsidiary of such Credit Party, Borrowers shall prepay the Loans in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by any Credit Party in connection therewith (in each case, paid to non-Affiliates), (B) amounts payable to holders of senior Liens (to the Net Disposition Proceeds extent such Liens constitute Permitted Encumbrances hereunder), if any, on the assets so disposed and (C) transfer taxes plus an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such prepayment shall, subject to Section 1.3(b)(iv), be applied in accordance with Section 1.3(c).
(iii) If any Credit Party issues Stock or any Indebtedness (other than Indebtedness permitted by Section 6.3) in excess of $1,000,000 in the aggregate of such saleStock and such Indebtedness, such repayments to be made promptly but in no event more later than three (3) the Business Days Day following receipt of such net proceeds, and until the date of paymentreceipt of the cash proceeds thereof, the issuing Credit Party shall prepay the Loans in an amount equal to all such proceeds proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith; provided, that no such prepayment shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstrequired, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, from the proceeds of any issuance of Stock by a Credit Party (i) to any director, officer or other employee of such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters Credit Party, the total proceeds of Credit lastwhich do not exceed $5,000,000 in the aggregate, (ii) in connection with the Related Transactions, (iii) as consideration for any Person (other than any Affiliate of a Credit Party) providing permitted Indebtedness under Section 6.3, (iv) to any other Credit Party or (v) as consideration to any Person (other than an Affiliate) selling assets in any Permitted Acquisition. Any such order as Agent may determineprepayment shall, subject to Borrowers’ ability to re-borrow Revolving Advances Section 1.3(b)(iv), be applied in accordance with the terms hereofSection 1.3(c).
(biv) Notwithstanding In the foregoingevent that Section 1.3(b)(i), (ii) or (iii) shall require any prepayment to be made on a day other than an Interest Payment Date, then upon receipt of such prepayment and to the extent requested by any Borrower, Agent shall hold such amount as cash collateral (provided that the Borrower delivering the same shall have executed and delivered such documents as Agent shall have requested in connection with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)such cash collateral) and, so long as no Default or Event of Default shall have occurred and be continuing and continuing, shall not apply such cash collateral to the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of prepayment under the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion paragraph of such Net Disposition Proceeds in fixed or capital assets or other assets useful to this Section 1.3 until the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds next succeeding Interest Payment Date. Such cash collateral shall be applied invested in Cash Equivalents as directed by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Borrower in accordance with such documents. Interest earned on such cash collateral shall accrue for the provisions account of Section 3.2(b)the Borrower providing the same, provided however that if shall constitute additional cash collateral and (assuming no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastcontinuing) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) firstbe, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) secondextent remaining, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment on such next succeeding Interest Payment Date.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Sources: Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.)
Mandatory Prepayments. Sections 2.20(a) and 2.20(b) of the Loan Agreement shall be amended and restated in their entirety as follows:
(a) When Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the outstanding Advances (x) first, to the outstanding principal installments of the Term Loan Equipment Loans in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of (x) any issuance or other incurrence of Indebtedness (other than Indebtedness described in the definition of Permitted Indebtedness) by Borrowers, (y) the issuance of any Equity Interests by any Borrower, or (z) the receipt by any Borrower of the proceeds of any grant, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of (i) the cash proceeds from any such issuance or incurrence of Indebtedness, (ii) the net cash proceeds of any issuance of Equity Interests, or (iii) the cash proceeds of any such grants, as applicable, repay the Advances in an amount equal to (x) one hundred percent (100.00100%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00100%) of such net cash proceeds received from in the case of an issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment Interests, and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then (z) one hundred percent (100.00100%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order case of the maturities thereof until the outstanding balance receipt of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization proceeds of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such grants. Such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall will be applied in accordance with the same manner as set forth in Section 6.62.20(a) hereof. The foregoing requirements regarding proceeds of grants shall not apply to the extent that they would require Borrowers to violate the terms of any grant agreement restricting the use of proceeds of such grant.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (IBEX LTD), Revolving Credit and Security Agreement (IBEX LTD), Revolving Credit and Security Agreement (IBEX Holdings LTD)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash ▇▇▇▇ collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Mandatory Prepayments. (ai) When Upon the sale, transfer or other disposition by the Borrower or any Borrower sells or otherwise disposes Subsidiary of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate Aircraft, or any Equity Interest in any fiscal year, Aircraft Owning Entity or Owner Participant to a Person other than Inventory any Borrower Group Member or, if the conditions substantially identical to those set forth in Section 6.2(p) have been satisfied, any Section 9.7(a) Entity (including, without limitation, in connection with the Ordinary Course consummation of Business any Capital Markets Transaction or Dispositions otherwise permitted under Section 7.1any other refinancing by the Borrower) (each, Borrowers a “Disposition Event”), the Borrower shall repay forthwith deposit into the Advances in Collection Account an amount equal to the Net net proceeds from such Disposition Proceeds Event (together with all amounts maintained in the Supplemental Rent Account and the Security Deposit Account attributable to such Aircraft or Equity Interest, that are not payable to the applicable Lessee or seller of such saleAircraft or Equity Interest), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments which amounts shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions Flow of Section 3.2(b), provided however that if no Default or Funds on the next Payment Date after such Disposition Event. Upon the occurrence of an Event of Default has occurred Loss with respect to any Aircraft, the Borrower shall, upon the receipt of any insurance, condemnation or other proceeds (including any Lessee or other third party payments and is continuing, all amounts maintained in the Supplemental Rent Account and the Security Deposit Account attributable to such repayments shall Aircraft that are not required to be applied returned to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances the applicable Lessee in accordance with the terms hereofof the Lease) in respect of such Event of Loss, deposit into the Collection Account an amount equal to the then Allocable Advance Amount of such Aircraft (determined as of the date of such Event of Loss), which amount shall be applied in accordance with the Flow of Funds on the next Payment Date after such deposit.
(bii) Notwithstanding If there is a Borrowing Base Deficiency as of any Payment Date, the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default Borrower shall have occurred and be continuing and prepay on such Payment Date the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied Outstanding Principal Amount by Agent to the Revolving Advances and Agent shall implement a reserve an amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect Borrowing Base Deficiency by deposit to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal yearCollection Account, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with the Flow of Funds.
(iii) If there is a Borrowing Base Deficiency as of any Report Date, the Borrower shall prepay on the Payment Date immediately succeeding such Report Date the Outstanding Principal Amount by an amount equal to the amount of such Borrowing Base Deficiency by deposit to the Collection Account, which amounts shall be applied in accordance with the Flow of Funds.
(iv) If the LTV Maintenance Test shall not be satisfied in connection with a Disposition Event or an Event of Loss, the Borrower shall prepay, on the Payment Date specified in Section 6.64.2(b)(i) with respect to such Disposition Event or Event of Loss, as the case may be, the Outstanding Principal Amount by an amount equal to the amount by which the Outstanding Principal Amount is required to be reduced in order for the LTV Maintenance Test to be satisfied, by deposit of such amount into the Collection Account. Any amounts prepaid in accordance with this clause (iv) shall be applied in accordance with the Flow of Funds.
(v) The Borrower shall give at least four (4) Business’ Day’s prior written notice of any prepayment pursuant to this Section 4.2(b) to the Administrative Agent, which notice shall be irrevocable.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Genesis Lease LTD)
Mandatory Prepayments. (ai) When Except as provided in Section 2.8, if at any Borrower sells or otherwise disposes time the Total Outstandings exceed the lesser of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (i) the aggregate in any fiscal yearBorrowing Base and (ii) the Aggregate Commitment, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay promptly upon the Advances earlier of (A) any Responsible Officer of the Administrative Borrower obtaining knowledge thereof and (B) demand from the Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, an amount equal to such excess with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolving Loans and third, with respect to any Letters of Credit then outstanding, to a payment of cash collateral into a cash collateral account opened by the Administrative Agent, for the benefit of the Lenders.
(ii) If as of the most recent Revaluation Date and for any reason (including, without limitation, due to currency rate fluctuations) (A) the outstanding Letter of Credit Obligations exceed the Letter of Credit Limit or (B) the outstanding Alternative Currency Letter of Credit Obligations exceed the Alternative Currency Letter of Credit Sublimit, then the Borrowers shall, promptly upon the earlier of (x) any Responsible Officer of the Administrative Borrower obtaining knowledge thereof and (y) demand from the Administrative Agent, by payment to the Administrative Agent for the account of the applicable Issuing Banks and the Lenders, make a payment of cash collateral in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited excess into a cash collateral account opened by the terms and conditions hereof. Such repayments shall be applied (x) firstAdministrative Agent, to for the outstanding principal installments benefit of the Term Loan in applicable Issuing Banks and the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofLenders.
(biii) Notwithstanding the foregoingIf at any time any Loan Party or any of its Subsidiaries shall receive Net Cash Proceeds from (A) any insurance or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event Collateral or (B) the sale (or series of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2sales) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to disposition of Collateral or Material Trademarks, the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00100%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will Net Cash Proceeds, which Net Cash Proceeds shall promptly upon receipt thereof be deposited into a Blocked Account and payments therefrom shall be applied by the Administrative Agent for the account of the Lenders first to the principal amount of outstanding Swingline Loans and second to the principal amount of outstanding Revolving Loans, without a corresponding reduction of the Aggregate Commitment; provided that such prepayment shall only be required (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and during a Cash Dominion Period or (y) secondif, to the remaining Advances (including cash collateralization of all Obligations relating after giving effect to any outstanding Letters of Credit event described in accordance with the provisions of Section 3.2(bthis clause (ii), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
a Cash Dominion Period (e) Other than pursuant without giving effect to any issuance of Equity Interests of Borrowers (iCash Dominion Grace Period) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall would be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereoftriggered.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Mandatory Prepayments. (a) When Within three Business Days of receipt by the Borrower or any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds its Subsidiaries of proceeds in excess of $500,000 25,000 of any sale or disposition by the Borrower or such Subsidiary of any of its assets (excluding (i) sales of inventory in the aggregate in any fiscal yearordinary course of business, other than Inventory in (ii) sales of worn-out, surplus or obsolete equipment, (iii) sales of assets the Ordinary Course proceeds of Business which are invested or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments committed to be made promptly but in no event more than three invested into the businesses of the Borrower and its Subsidiaries within 180 days after such assets are sold, (3iv) Business Days following receipt insurance proceeds (less any costs of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed recovery) which are invested or committed to be implied consent to any such sale otherwise prohibited by invested into the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments business of the Term Loan Borrower and its Subsidiaries within 180 days of receipt, (v) sales or liquidations of Permitted Investments, (vi) sales of accounts receivable in the inverse order of the maturities thereof, connection with settlement or collection and (yvii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters other sales of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds assets of the applicable Loan Party’s or its Subsidiary’s election to reinvest all Borrower or any portion of such Net Disposition Proceeds its Subsidiaries with an aggregate book value not to exceed $5,000,000 in fixed or capital assets or other assets useful to any Fiscal Year) the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to twentyall such proceeds, net of commissions and other reasonable, taxes, reserves for purchase price adjustments and post-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsclosing obligations, and Agent customary transaction costs, fees and expenses properly attributable to such transaction and payable by such Borrower in its sole discretionconnection therewith (in each case, within paid to non-Affiliates). Any such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.62.13(d).
(b) If the Borrower or any of its Subsidiaries issues any debt or equity securities (other than Indebtedness permitted under Section 7.1, equity securities issued by a Subsidiary of the Borrower to the Borrower or another Subsidiary or equity securities transferred or allocated to the Borrower’s ESOP or stock option plans) then no later than three Business Days following the date of receipt of the proceeds thereof, Borrower shall prepay the Loans in an amount equal to 50%, in the case of equity securities, and 100% in the case of debt securities, of all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with Section 2.13(d).
(c) Intentionally deleted.
(d) Amounts to be applied in connection with prepayments made pursuant to Sections 2.13(a) or (b) shall be applied first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders and the Issuing Bank then due and payable pursuant to any of the Loan Documents; third, to interest then due and payable on the Loans; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full; fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, and seventh, to cash collateralize the Letters of Credit in accordance with Section 2.23(g) in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant this the Section 2.13(d).
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.9 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. 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, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 2.23(g) hereof.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes On the date of any Collateral resulting termination or reduction of the Commitments pursuant to Section 2.05, the Borrower shall pay or prepay for the ratable accounts of the Lenders so much of the principal amount outstanding under this Agreement as shall be necessary in Net Disposition Proceeds in excess order that the principal amount outstanding (after giving effect to such prepayment) will not exceed the amount of $500,000 Commitments following such termination or reduction, together with (A) accrued interest to the date of such prepayment on the principal amount repaid or prepaid and (B) in the aggregate in case of prepayments of Eurodollar Rate Advances, Adjusted CD Rate Advances or B Advances, any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal payable to the Net Disposition Proceeds of such sale, such repayments Lenders pursuant to Section 8.04(b).
(b) All prepayments required to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed pursuant to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments this Section 2.12 shall be applied by the Agent as follows: (xi) first, to the outstanding principal installments prepayment of the Term Loan in A Advances (without reference to minimum dollar requirements), applied to outstanding Base Rate Advances up to the inverse order full amount thereof before they are applied to the ratable prepayment of the maturities thereof, Eurodollar Rate and Adjusted CD Rate Advances; and (yii) second, to the remaining prepayment of the B Advances (including cash collateralization of all Obligations relating without reference to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bminimum dollar requirements), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with ratably among all the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentLenders holding B Advances.
(c) Borrowers shall prepay the outstanding amount In lieu of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31prepaying any Eurodollar Rate Advances, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in Adjusted CD Rate Advances or B Advances under any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness provision (other than Permitted IndebtednessSections 2.14 and 6.01) of this Agreement, the Borrower may, upon notice to the Agent, deliver such funds to the Agent, to be held as additional cash collateral securing the obligations hereunder and under the Notes. The Agent shall deposit all amounts delivered to it in a non-interest-bearing special purpose cash collateral account, to be governed by Borrowersa cash collateral agreement in form and substance satisfactory to the Borrower and the Agent, Borrowers shall, no later than three (3) Business Days after and shall apply all such amounts in such account against such Advances on the receipt by Borrowers last day of the cash proceeds from Interest Period therefor. The Agent shall promptly notify the Lenders of any such issuance or incurrence of Indebtedness, repay election by the Advances in an amount equal Borrower to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, deliver funds to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and Agent under this subsection (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bc), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Ies Utilities Inc), Credit Agreement (Ies Utilities Inc)
Mandatory Prepayments. (a) When If at any Borrower sells or otherwise disposes time any of any Collateral resulting in Net Disposition Proceeds in excess the Availability Requirements fail to be satisfied (except as the result of $500,000 in the aggregate in any fiscal yearmaking of a Protective Advance, other than Inventory in unless requested by the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Administrative Agent), then, the applicable Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of promptly prepay Loans and Cash Collateralize L/C Obligations (it being understood that any such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall L/C Obligations so Cash Collateralized will not be deemed to be implied consent to any such sale otherwise prohibited by outstanding for purposes of this Section 5.2(a)) so that the terms and conditions hereof. Such repayments shall Availability Requirements will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofsatisfied.
(b) Notwithstanding At all times following the foregoingestablishment of the Cash Management Systems for the relevant jurisdiction pursuant to Section 9.16 and during the Cash Dominion Period (subject to the provisions of the Security Documents), on each Business Day, at or before 1:00 p.m. (local time), the Administrative Agent shall apply all immediately available funds credited to any Concentration Account, (i) with respect to any Net Disposition Proceeds which would otherwise give rise Concentration Account of any U.S. Credit Party, first to pay any fees or expense reimbursements then due to the Administrative Agent, the Collateral Agent, each U.S. L/C Issuer, and the U.S. Revolving Credit Lenders hereunder, in each case in their capacity as such, pro rata, second to pay interest due and payable in respect of any Loans (including U.S. Swing Line Loans and U.S. Protective Advances) of the Parent Borrower that may be outstanding, pro rata, third to prepay the principal of any U.S. Protective Advances to the Parent Borrower that may be outstanding, pro rata and fourth to prepay the principal of the U.S. Revolving Credit Loans and U.S. Swing Line Loans to the Parent Borrower and to Cash Collateralize U.S. L/C Obligations of the Parent Borrower, pro rata and (ii) with respect to any Concentration Account of any Foreign Borrower, first to pay any fees or expense reimbursements then due to the Administrative Agent, the Collateral Agent, each Foreign L/C Issuer, and the Foreign Revolving Credit Lenders hereunder, in each case in their capacity as such, pro rata, second to pay interest due and payable in respect of any Loans (including Foreign Swing Line Loans and Foreign Protective Advances) of such Borrower that may be outstanding, pro rata, third to prepay the principal of any Foreign Protective Advances to such Borrower that may be outstanding, pro rata and fourth to prepay the principal of the Foreign Revolving Credit Loans and Foreign Swing Line Loans to such Borrower and to Cash Collateralize Foreign L/C Obligations of such Borrower, pro rata, fifth to pay interest due and payable in respect of any remaining Loans (including Swing Line Loans and Protective Advances) of the Foreign Borrowers that may be outstanding, pro rata, sixth to prepay the principal of any remaining Foreign Protective Advances that may be outstanding, pro rata and seventh to prepay the principal of any remaining Foreign Revolving Credit Loans and Foreign Swing Line Loans and to Cash Collateralize any remaining Foreign L/C Obligations, pro rata; provided that, at any time that a certificate is delivered or comes into effect pursuant to Section 14.2(c) with respect to a prepayment under Section 2.20(a), German Borrower (and for so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of any such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds certificate is in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve effect with respect to such amount German Borrower, unless and until otherwise ordered by a court of competent jurisdiction), funds credited to any Concentration Account of such German Borrower shall only be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect applied pursuant to the release first through the fourth sub-clauses above of the reserve for such amount) to cause such Revolving Advances to be made, this clause (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document).
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Abl Credit Agreement (Avaya Holdings Corp.), Abl Credit Agreement (Avaya Holdings Corp.)
Mandatory Prepayments. (ai) When any The Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 shall prepay the Advances on each Payment Date in the aggregate in any fiscal year, other than Inventory manner and to the extent provided in the Ordinary Course Priority of Payments.
(ii) [Reserved].
(iii) Notwithstanding anything to the contrary herein, if any Monthly Report or Payment Date Report shows that the Foreign Currency Advance Amount at such time exceeds the Non-Dollar Sublimit then in effect, then, within five (5) Business Days of delivery of such Monthly Report or Dispositions otherwise permitted under Section 7.1Payment Date Report, Borrowers as applicable, the Borrower shall repay prepay Advances in an aggregate amount sufficient to reduce the Foreign Currency Advance Amount as of such date of payment to an amount not to exceed 100% of the Non-Dollar Sublimit then in effect. The Borrower may (A) prepay the Advances in such aggregate amount and (B) simultaneously borrow new Advances denominated in Dollars hereunder in an amount equal to the Net Disposition Proceeds Dollar Equivalent of such salerepayment; provided that with respect to subclauses (A) and (B), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the Dollar Equivalent of the aggregate outstanding principal installments amount of the Term Loan in the inverse order Advances does not exceed 100% of the maturities thereofMaximum Facility Amount, and (y) secondthe prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the remaining extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (z) the Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the new Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit are held ratably by the Lenders in accordance with the provisions respective Percentage of Section 3.2(bsuch Lenders (after giving effect to such prepayment), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(biv) Notwithstanding In connection with any prepayment pursuant to clause (ii) or (iii) above, the foregoingBorrower shall deliver to the Collateral Agent, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing the Lenders and the Borrowing Administrative Agent shall have notified Agent within a Notice of Prepayment not later than 2:00 p.m. New York City time two (2) Business Days following receipt prior to the date of such Net Disposition Proceeds prepayment. The Administrative Agent shall promptly notify the Lenders of such Notice of Prepayment. Each such Notice of Prepayment shall specify the portion of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to outstanding principal balance and the business currency of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Advance that shall be applied by Agent to the Revolving Advances prepaid and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment be irrevocable and the reserve with respect to such amount shall be released effective upon receipt and shall be available to Borrowers as dated the date such notice is being given, signed by a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release Responsible Officer of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) Borrower and otherwise appropriately completed. If a Notice of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited Prepayment is given by the terms Borrower, the Borrower shall make such prepayment and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding payment amount of the Term Loans specified in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount notice shall be applied to due and payable on the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsdate specified therein.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
Mandatory Prepayments. (a) When Except as otherwise permitted pursuant to clauses (a), (c), (e), (f), (g), (h), (k) and (l) of the definition of Permitted Disposition and subject to Section 15.19, when a Borrower or any Borrower of its Subsidiaries sells or otherwise disposes of any Collateral resulting Collateral, or receives insurance proceeds paid in Net Disposition Proceeds in excess respect of any casualty loss relating to any assets or property of such Person or proceeds of a Condemnation Event (other than asset disposition, insurance and/or Condemnation Event proceeds of less than $500,000 in the aggregate in any fiscal yearFiscal Year), other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay the Advances Loans in an amount equal to the Net Disposition Proceeds cash net proceeds of such sale, casualty loss or Condemnation Event (i.e., gross cash proceeds received less (i) the reasonable costs (including, without limitation, repayment of Indebtedness related thereto and taxes) of such sales or other dispositions, (ii) reserves, required to be established in accordance with GAAP or the definitive agreements relating to such disposition, with respect to such disposition, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and laities under any indemnifications obligations, (iii) any non-contingent liabilities directly related to the asset sold and not assumed by the purchaser thereof and (iv) in the case of insurance proceeds or a Condemnation Event, actual and reasonable costs and expenses incurred in connection with the adjustment or settlement of claims in respect thereof), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided, that no prepayment shall be required in connection with such disposition, casualty loss or Condemnation Event in respect of Revolving Loan Priority Collateral (as defined in the Intercreditor Agreement) unless receipt of the proceeds thereof shall have been declined by the requisite Revolving Lenders in accordance with the terms of the PNC Credit Agreement; provided, further, that no prepayment shall be required in connection with such a Collateral disposition, casualty loss or Condemnation Event if the proceeds thereof are reinvested by the Person receiving such proceeds in an asset reasonably related or necessary to the business of Borrower (or, in the case of insurance proceeds, used to repair, refurbish, restore, replace or rebuild the asset giving rise to such proceeds) within two hundred seventy (270) days following receipt thereof, but only to the extent that the Borrower notifies Agent of such Person’s intent to make such reinvestment at the time such proceeds are received and when such reinvestment occurs no Default or Event of Default shall then be in existence. Any such prepayment shall be applied in accordance with clause (d) below (either at the time of receipt thereof or upon expiration of the 270-day period described above to the extent the net proceeds are not so reinvested (or, in the case of insurance proceeds, not used to repair, refurbish, restore, replace or rebuild the asset giving rise to such proceeds) within such period as permitted in this clause (a)), and shall be accompanied an indemnification payment as required under Section 2.2(f), in any. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding At Agent’s discretion, Borrower shall, commencing with the foregoingfiscal year ending closest to March 31, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)2015, so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an aggregate amount equal to twenty-five percent (25%i) 50% of Excess Cash Flow for each the applicable fiscal year beginning with minus (ii) the fiscal year ending December 31, 2022, payable upon delivery aggregate amount of all voluntary prepayments of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each Term Loans made during such fiscal year, which amount shall be applied payable on or prior to the outstanding principal installments of fifteenth day following the Term Loan date the financial statements described in Section 9.7 for such fiscal year are required to be delivered to Agent, and which amount shall be applied in accordance to clause (d) below and shall be accompanied by an indemnification payment as required under Section 2.2(f) to the inverse order of the maturities thereofextent applicable. In the event that the such financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers Borrower shall make the prepayment required by this Section 2.20(c2.21(b), subject to adjustment when the such financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers Borrower to deliver such financial statements. The amount of any prepayment due pursuant to this Section 2.21(b) shall be reduced by the aggregate amount of voluntary prepayments of principal on the Term Loans made by Borrower during the applicable fiscal year pursuant to Section 2.6(a) hereof.
(c) If any Loan Party or any of its Subsidiaries:
(i) issues Equity Interests or otherwise obtains an equity contribution (other than (A) a contribution resulting from issuances by Parent Holdco to (or equity contributions received from) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any other Person that is an equityholder of Parent Holdco as of the Original Closing Date (other than issuances or equity contributions in connection with an Equity Cure), or (B) issuances by Borrower to Parent Holdco or by any Subsidiary to another Loan Party) or (C) equity contributions received by a Subsidiary of Parent Holdco from Parent Holdco or another Subsidiary of Parent Holdco);
(ii) receives proceeds on account of an Equity Cure; or
(iii) incurs any Indebtedness for borrowed money (other than Indebtedness permitted to be incurred under Section 7.8), no later than two Business Days following the date of receipt of the proceeds thereof by Holdings or any of its Subsidiaries, the Borrower shall prepay the Loans and other Obligations in an amount equal to all such proceeds, net of, except in the case of the proceeds received on account of an Equity Cure, underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be shall be applied in accordance to clause (d) below and shall be accompanied by an indemnification payment as required under Section 2.2(f) to the extent applicable.
(d) In Subject to the event provisions of Section 11.5, any issuance or other incurrence of Indebtedness prepayments made by Borrower pursuant to Sections 2.21(a) through (other than Permitted Indebtednessc) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will shall be applied (x) to each Term Loan on a pro rata basis based on the respective outstanding principal balances thereof and, as to each Term Loan, shall be applied as follows: first, to the outstanding principal installments balance of such Term Loan; and second, to any other Obligations then outstanding; provided that (i) any partial prepayment of the Term Loan in the inverse order Loans made by or on behalf of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments Borrower shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the each Term Loan exceeds on a pro rata basis based on the respective outstanding principal balances thereof and, as to each Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real PropertyLoan, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to reduce the Revolving Advances. If Agent orders an appraisal remaining scheduled installments of such Term Loan (including the final installment due on the last day of the Equipment Term) pro rata to the remaining installments thereof, and Real Property and the Term (ii) any prepayment of a Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied first to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) portion of such net cash proceeds received from the issuance Loan comprised of Equity Interests shall be applied (x) first, Base Rate Loans and then to the outstanding principal installments portion of the Term such Loan comprised of LIBOR Rate Loans, in the inverse direct order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofInterest Period maturities.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Each Net Disposition Proceeds in excess of $500,000 in Prepayment shall be applied as follows: (i) up to the aggregate Release Amount for the affected Individual Property in any fiscal year, order or priority as Administrative Agent may determine in its sole discretion and (ii) to Borrower. No Prepayment Premium or other than Inventory premium or penalty shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Allocated Loan Amount for the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Individual Property with respect to which such Net Proceeds Prepayment was applied shall repay the Advances be reduced in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agentprepayment. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Administrative Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election provide to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their SubsidiariesBorrower, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsprior notice, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under a release of the Individual Property if (A) at any insurance policy on account of damage time the Release Amount is reduced to zero, together with such additional documents and instruments evidencing or destruction of any assets confirming the release as Borrower shall reasonably request, or property of any Borrowers, (B) Administrative Agent is required to deliver such release pursuant to a court order issued in connection with a Condemnation or (ii) as a result release of any taking or condemnation the portion of any assets or property shall be applied an Individual Property that is subject to a Condemnation.
(b) As provided in Section 6.4(e) hereof, each Casualty/Condemnation Prepayment tendered by Borrower to Administrative Agent in accordance with said Section 6.66.4(e) shall be in the amount of the Release Amount in respect of the applicable Individual Property. No Prepayment Premium or other penalty or premium shall be due in connection with any such Casualty/Condemnation Prepayment.
(c) In connection with any release under this Section 2.4.2, in the event that such release would result in an individual Borrower being an Unencumbered Borrower, such Unencumbered Borrower shall be released by Administrative Agent on behalf of Lenders from the obligations of the Loan Documents, except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document and shall no longer be a Borrower for the purposes of this Agreement. In connection with a release or cancellation of each Unencumbered Borrower, Administrative Agent agrees to deliver, on behalf of Lenders, (i) a UCC-3 Financing Statement termination or amendment releasing each Lenders’ security interest in the collateral pledged to such Lender relating to each Unencumbered Borrower, and (ii) instruments executed by Administrative Agent or Lenders, as applicable, reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. All reasonable costs and expenses incurred by Administrative Agent or Lenders in connection with such release shall be paid by Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Mandatory Prepayments. (a) When Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes Loan Party Disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than (u) Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Business, (v) any Sale and Leaseback Transaction on Term Loan Priority Collateral owned by any Loan Party as of the Closing Date and consummated in accordance with Section 7.17.11 hereof, Borrowers (w) the Disposition of the GMF Collateral, (x) any Equity Interests issued by the Borrower, (y) any Extraordinary Receipts and (z) until the Term Loan is paid in full, any other Disposition of assets solely constituting Term Loan Priority Collateral of any Loan Party, the Borrower shall repay the Advances in an amount equal to the Net Disposition Proceeds of such saleDisposition, such repayments to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsNet Proceeds, and until the date of payment, such proceeds Net Proceeds shall be held in trust for Agent; provided however, that if the Borrower shall deliver to the Agent a certificate of a senior officer of the Borrower to the effect that the applicable Loan Party’s intent to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), to be reinvested within 180 days after receipt of such Net Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate. The foregoing shall not be deemed to be implied consent to any such sale Disposition otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof, determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), Obligations; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) last in such order as Agent may determine, subject to Borrowers’ the Borrower’s ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document[Reserved.]
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowersany Loan Party, Borrowers the Borrower shall, no later than three five (35) Business Days after the receipt by Borrowers the Borrower of the cash proceeds Net Proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) the Net Proceeds of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (ysame manner as set forth in Section 2.20(a) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(fd) All proceeds received by Borrowers Loan Parties or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any BorrowersLoan Party (to the extent the Term Loans has not been paid in full, constituting ABL Priority Collateral), or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.66.6 hereof, provided however, that if the Borrower shall deliver to the Agent a certificate of a senior officer of the Borrower to the effect that the applicable Loan Party’s intent to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Nn Inc), Revolving Credit and Security Agreement (Nn Inc)
Mandatory Prepayments. (a) When If at any time the aggregate outstanding principal amount of Revolving Credit Exposure exceeds the Borrowing Limit, the Borrower sells shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.14. Each prepayment of a Borrowing shall be applied ratably to the Swingline Loans, to the full extent thereof, then to the Revolving Base Rate Loans to the full extent thereof, and then to Revolving Eurodollar Loans to the full extent thereof.
(b) If at any time the aggregate outstanding principal amount of Revolving Loans exceeds the Aggregate Revolving Commitments the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment of a Borrowing shall be applied ratably to the Swingline Loans, to the full extent thereof, then to the Revolving Base Rate Loans to the full extent thereof, and then to Revolving Eurodollar Loans to the full extent thereof.
(c) Immediately upon receipt by the Borrower or otherwise disposes any of its Subsidiaries of proceeds of any Collateral resulting sale or disposition by the Borrower or such Subsidiary of any of its assets (excluding (i) sales of inventory in Net Disposition Proceeds the ordinary course of business, (ii) sales of obsolete equipment, and (iii) so long as no Event of Default has occurred and is continuing, (A) sales of assets the proceeds of which are invested into the businesses of the Borrower and its Subsidiaries within 180 days after such assets are sold, (B) sale or other disposition of (x) the distribution software business unit of the Borrower and its Subsidiaries located in excess Arizona to the extent such sale occurs no later than December 31, 2003 and (y) the operations of Symix France, S.A., including without limitation the Tolas product line to the extent such sale occurs no later than December 31, 2003, and (C) sales of other assets of the Borrower or any of its Subsidiaries with an aggregate book value not to exceed $500,000 in any Fiscal Year) the aggregate Borrower shall prepay the Loans in an amount equal to all such proceeds, net of commissions, reasonable estimate for taxes due in connection therewith and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by such Borrower in connection therewith (in each case, paid to non-Affiliates).
(d) If the Borrower or any fiscal year, of its Subsidiaries incurs any Indebtedness or issues any equity securities (other than Inventory in the Ordinary Course of Business or Dispositions otherwise (i) Indebtedness permitted under Section 7.1, Borrowers (ii) equity securities issued by a Subsidiary of the Borrower to the Borrower or another Subsidiary, (iii) equity securities issued in respect of warrants, stock options granted in connection with employee stock option plans and stock issued pursuant to employee stock purchase plans approved by the Borrower’s board of directors and (iv) stock issued in connection with any acquisitions permitted under Section 7.4), then no later than the Business Day following the date of receipt of the proceeds thereof, Borrower shall repay prepay the Advances Loans in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith.
(e) The Borrower shall, concurrently with the Net Disposition Proceeds delivery of such sale, such repayments the financial information required under Section 5.1(a) with respect to be made promptly each Fiscal Year (but in no event more than three (3) Business Days following receipt of such net proceeds, and until laterthan the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed information is required to be implied consent delivered) commencing with the delivery of the financial information with respect to any Fiscal Year 2003, make a mandatory prepayment of the outstanding principal amount of the Loans in an amount equal to fifty percent (50%) of Excess Cash Flow for such sale otherwise prohibited Fiscal Year.
(f) Any prepayments made by the terms and conditions hereof. Such repayments Borrower pursuant to Sections 2.13(c), (d) or (e) above shall be applied (x) as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the outstanding Loan Documents; second, to all other Fees and reimbursable expenses of the Lenders and the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such Fees and expenses; third, to interest then due and payable on the Loans made to Borrower, pro rata to the Lenders based on their respective Pro Rata Shares of such Loans; and fourth, to the principal installments of the Term Loan A Loans in the inverse order of the maturities thereofmaturity, and (y) second, pro rata to the remaining Advances (including cash collateralization Lenders based on their Pro Rata Shares of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Term A Loans. If a Default or Event of Default has occurred and is continuing, such repayments the remaining proceeds shall be applied applied: fifth to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds principal balance of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful Swingline Loans, to the business Swingline Lender; sixth, to the principal balance of the Loan Parties Revolving Loans, pro rata to the Lenders based on their Pro Rata Shares of the Revolving Loans; and their Subsidiaries, then such Net Disposition Proceeds seventh to provide cash collateral for any outstanding LC Exposure in the manner and to the extent set forth in Section 2.23(g). The Revolving Commitments of the Lenders shall be applied permanently reduced by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds any prepayments made pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment clauses fifth, sixth and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentseventh above.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Mandatory Prepayments. (ai) When If at any Borrower sells time the aggregate total Revolving Credit Exposure of all of the Lenders exceeds the lesser of (i) the Aggregate Revolving Commitments of all of the Revolving Lenders or otherwise disposes (ii) the Borrowing Base, the Borrowers shall immediately prepay the entire amount of such excess to the Administrative Agent, for the ratable account of the Revolving Lenders, in an aggregate amount equal to such excess in accordance with clause (vi) below.
(ii) Upon the Disposition of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in assets by the aggregate in Borrowers or any fiscal year, Subsidiary (other than Inventory in the Ordinary Course of Business or Dispositions otherwise a Disposition permitted under Section 7.18.4(b) or (i)), the Borrowers shall repay the Advances in prepay an aggregate principal amount of Loans equal to 100% of the Net Disposition Cash Proceeds of received therefrom promptly following receipt thereof by the Borrowers or such sale, Subsidiary (such repayments prepayments to be made promptly but applied as set forth in no event more than three clause (3vi) Business Days following below); provided, however, that at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent on or prior to the date of receipt of such net proceeds), the Borrowers or such Subsidiary may reinvest such proceeds to replace such assets in respect of which such proceeds were received so long as (I) such reinvestment is completed within 180 days after the receipt of such proceeds, and until the date (II) while such reinvestment is underway, all of payment, such proceeds shall be held are on deposit with the Administrative Agent in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by a separate deposit account over which the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofAdministrative Agent has exclusive control, and (yIII) second, to the remaining Advances (including cash collateralization such Disposition did not cause an Event of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if Default and no other Default or Event of Default has occurred and is continuing; provided, further, that any Net Cash Proceeds not reinvested within such repayments 180-day period shall be promptly applied to cash collateralize the prepayment of the Loans as otherwise set forth in clause (vi) below. For the avoidance of doubt, nothing in this clause (ii) shall be construed to permit any Obligations related to outstanding Letters Disposition of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofassets not otherwise permitted hereunder.
(biii) Notwithstanding Upon the foregoingsale or issuance by the Borrowers or any Subsidiary of any of their Equity Interests (other than any Specified Contribution), the Borrowers shall prepay an aggregate principal amount of Loans in the amount equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrowers or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below). For the avoidance of doubt, nothing in this clause (iii) shall be construed to permit any sale or issuance of Equity Interests not otherwise permitted hereunder.
(iv) Upon the issuance or incurrence by the Borrower or any Subsidiary of any Indebtedness (other than Indebtedness permitted under Section 8.1), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrower or such Subsidiary (such prepayment to be applied as set forth in clause (vi) below). For the avoidance of doubt, nothing in this clause (iv) shall be construed to permit the issuance or incurrence of Indebtedness not otherwise permitted hereunder.
(v) Upon the receipt by the Borrowers or any Subsidiary of any Net Cash Proceeds not in the ordinary course of business, including, without limitation, tax refunds, pension plan reversions, proceeds of insurance, condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments (each, an “Extraordinary Receipt”), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrowers or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below); provided, however, that with respect to insurance proceeds received in connection with any Net Disposition Proceeds which would otherwise give rise casualty or condemnation event, at the election of the Borrowers (as notified by the Borrowers to a prepayment under Section 2.20(a), so long as no Event the Administrative Agent on or prior to the date of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds proceeds), the Borrowers may apply such proceeds to the repair, restoration, or replacement of the applicable Loan Party’s assets suffering such casualty or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advancecondemnation event, so long as (iA) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be maderepair, (ii) all conditions to funding sent forth in Section 8.2 restoration, or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) replacement is completed within 180 days after the end receipt of each such fiscal yearproceeds, (B) while such repair, restoration, or replacement is underway, all of such proceeds are on deposit with the Administrative Agent in a separate deposit account over which amount shall be applied the Administrative Agent has exclusive control and otherwise available to the outstanding principal installments of Borrowers upon its request to pay for the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) costs and expenses of such cash proceeds in the case of repair, restoration or replacement as such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstcosts and expenses are incurred, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (yC) second, to the remaining Advances (including cash collateralization such casualty or condemnation event did not cause an Event of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if Default and no other Default or Event of Default has occurred and is continuing; provided, further, if such repayments repair, restoration, or replacement is not completed within such 180-day period, then such Net Cash Proceeds shall be promptly applied to the prepayment of the Loans as otherwise set forth in clause (vi) below.
(vi) Prepayments of Loans under Sections 2.8(b)(ii) through (v) shall be applied first, to cash collateralize the remaining installments of principal due on the Revolving Loans, in order of maturity; and shall be applied first, to any Obligations related Base Rate Loans then outstanding, and second, to outstanding Letters of Credit last) any SOFR Loans then outstanding, and if more than one SOFR Loan is then outstanding, to such SOFR Loans in such order as the Borrowers may direct, or if the Borrowers fails to so direct, as the Administrative Agent may determine subject shall elect. For the avoidance of doubt, the application of any mandatory prepayment to Borrowers’ ability to reborrow the Outstanding Amount of the Revolving Advances in accordance with the terms hereof.
(e) Other than Loans made pursuant to any issuance of Equity Interests of Borrowers (ithis Section 2.8(b)(vi) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures shall not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent result in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance a corresponding permanent reduction of the Term Loan exceeds Aggregate Revolving Commitments. Unless so directed by the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order Borrowers, or unless an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments any prepayment of Loans pursuant to this Section 2.8(b) shall only be applied to cash collateralize any Obligations related to the outstanding Letters SOFR Loans (A) on the last day of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, Interest Period applicable thereto or (iiB) as a result of to the extent that there are no outstanding Base Rate Loans, and, in any taking or condemnation of any assets or property such event, the Borrowers shall be applied in accordance with pay all amounts required pursuant to Section 6.62.16.
Appears in 2 contracts
Sources: Secured Revolving Loan Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Secured Revolving Loan Credit Agreement (Strategic Wireless Infrastructure Fund Ii, Inc.)
Mandatory Prepayments. Borrower shall be required to make mandatory prepayments of the Term Loans upon each of the following:
(ai) When the receipt by Borrower or any Borrower sells or otherwise disposes of its Affiliates of any Collateral resulting damages or other amounts from Equipment Supplier under the Equipment Supply Agreement (including as a result of a delayed delivery pursuant to Section 4 of the Equipment Supply Agreement and as a result of any cancellation by Equipment Supplier pursuant to Section 19 of the Equipment Supply Agreement), in Net Disposition Proceeds an amount equal to (A) during the continuance of any Default or Event of Default, the amount of such damages or other amounts, or (B) so long as there is not continuing any Default or Event of Default, such portion of the amount of such damages as Hermes Agent (at the instruction of Hermes) shall designate in excess writing as the amount (if any) of $500,000 the Term Loans no longer eligible for coverage under the Hermes Export Credit Guarantee Documents as a result of such payment of amounts by Equipment Supplier to Borrower;
(ii) any failure of the Hermes Export Credit Guarantee Documents to be effective with respect to any portion of the Term Loans, in an amount equal to such portion of the aggregate in Term Loans; and
(iii) the refund to Borrower of any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Hermes Guarantee Fees by Hermes in an amount equal to the Net Disposition Proceeds Hermes Guarantee Fee Refund. Any such prepayment (including any deemed prepayment with the Hermes Guarantee Fee Refund made in accordance with 2.6.1) shall (A) include payment by Borrower of accrued and unpaid interest on the Term Loans being prepaid and any fees, breakage costs and other charges payable in connection with such salea prepayment under the terms of this Agreement (including Section 3.7), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsif any, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall (B) be applied to remaining amortization payments and the payments at final maturity thereof (x1) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default maturity or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt on a pro rata basis, at the option of such Net Disposition Proceeds Hermes Agent (acting at the instruction of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(viHermes). Borrowers Amounts prepaid as mandatory prepayments of Term Loans may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentre-borrowed.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy Partners LP)
Mandatory Prepayments. (ai) When any Borrower sells or otherwise disposes If, as of the last day of any Collateral resulting in Net Disposition Proceeds in excess month, (A) the sum of $500,000 in (x) the aggregate outstanding principal balance of the Term Loans on such date, plus (y) the aggregate outstanding principal balance of the LC Obligations on such date, plus (z) the Letter of Credit Usage on such date exceeds (B) the Borrowing Base (such excess being referred to as the "Limiter Excess"), then Borrowers shall, within 3 Business Days thereafter, prepay, without penalty or premium, the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an aggregate amount equal to the Limiter Excess.
(ii) Immediately upon the receipt by any fiscal year, Loan Party of the proceeds of any voluntary or involuntary sale or disposition by any Loan Party of property or assets constituting Collateral (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions (other than Inventory in clause (l) of the Ordinary Course definition of Business or Dispositions otherwise permitted under Section 7.1Permitted Dispositions)), Borrowers shall repay prepay the Advances outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of the Net Disposition Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) Administrative Borrower shall have given Agent prior written notice of Borrowers' intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such salesale or disposition or the cost of purchase or construction of other assets useful in the business of Loan Parties, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) the applicable Loan Party completes such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 180 days after the initial receipt of such net proceedsmonies, Loan Parties shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of Loan Parties unless and until to the date of paymentextent that such applicable period shall have expired without such replacement, such proceeds purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be held paid to Agent and applied in trust for Agentaccordance with Section 2.4(e). Nothing contained in this Section 2.4(d)(ii) shall permit Loan Parties to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(iii) Immediately upon the receipt by any Loan Party of any Extraordinary Receipts with respect to Collateral, Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the issuance or incurrence by any Loan Party of any Indebtedness (other than Indebtedness permitted under Section 6.1) or the issuance by any Loan Party of any shares of Loan Parties' Stock (other than in the event that any Loan Party forms a Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Stock to any such Loan Party), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The foregoing provisions of this Section 2.4(d)(iv) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (TB Wood's INC), Credit Agreement (Altra Industrial Motion, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Without limiting the requirements of Section 7.5 hereof regarding the consent of Majority Lenders to sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any Collateral resulting in Net Disposition Proceeds in excess sale of $500,000 property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the aggregate in business of Restricted Persons) by any fiscal year, Restricted Person (other than Inventory in the Ordinary Course a sale of Business or Dispositions otherwise property permitted under Section 7.17.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2.7(a) referred to as the "Collateral Period"). If any consideration consists of an instrument or security, Borrowers the Collateral Period shall, with respect to each amount of cash received in respect thereof, continue until ninety (90) days following such Restricted Person's receipt of such cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by Borrower. During each Collateral Period, Borrower may propose to invest such proceeds in other property subject to the approval of Majority Lenders, and shall repay thereafter invest such proceeds in such property so approved by Majority Lenders. At the Advances in end of each Collateral Period or, if an investment is so proposed and approved during such Collateral Period, within one hundred-eighty (180) days after such proposed investment has been so approved by Majority Lenders, any such proceeds which have not been so invested by Borrower shall be applied pro rata to the reduction of the outstanding principal balance of the Term Loans and the Revolver Loans at such time, and the Revolver Commitment shall be reduced by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be prepayment applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofRevolver Loans.
(b) Notwithstanding If at any time the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise Facility Usage exceeds the Revolver Commitment (whether due to a prepayment under Section 2.20(areduction in the Revolver Commitment in accordance with this Agreement, or otherwise), so long as no Event of Default Borrower shall have occurred and be continuing and immediately upon demand prepay the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds principal of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Revolver Loans in an amount at least equal to twenty-five percent (25%) such excess. Each prepayment of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount principal under this section shall be applied accompanied by all interest then accrued and unpaid on the principal so prepaid. Any principal or interest prepaid pursuant to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts this section shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsaddition to, and Agent not in its sole discretionlieu of, within such ten (10) day period, may request an appraisal of Equipment and Real Property all payments otherwise required to determine if be paid under the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount Documents at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Plains All American Pipeline Lp), Credit Agreement (Plains All American Pipeline Lp)
Mandatory Prepayments. (ai) When If at any time the outstanding balance of the Revolving Loan exceeds the lesser of (A) the Maximum Amount and (B) the Borrowing Base, in each case, less the outstanding Swing Line Loan at such time, ---- Borrower sells or otherwise disposes shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the ------- extent required to eliminate such excess.
(ii) Immediately upon receipt by any Credit Party of proceeds of any Collateral resulting asset disposition, which, together with other asset dispositions in Net Disposition Proceeds any Fiscal Year results in proceeds in excess of $500,000 400,000 in the aggregate in during such Fiscal Year, (excluding proceeds of asset dispositions permitted by Sections 6.8(a), 6.8(c) and 6.8(d)), but including proceeds of ---------------------------------- or any fiscal yearsale of Stock of any Subsidiary of any Credit Party), other than Inventory in Borrower shall prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, net of (A) commissions and until the date other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes payable by such Credit Party in connection therewith, (C) amounts payable to holders of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied senior Liens (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofextent such Liens constitute Permitted Encumbrances hereunder), if any, and (yD) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit an appropriate reserve for income taxes in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) GAAP in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) connection therewith. Notwithstanding the foregoing, the proceeds of asset dispositions which are reinvested in Capital Expenditures within 180 days after the date of receipt thereof need not be used to prepay the Obligations. Borrower shall report to Agent in writing its' intention to reinvest such proceeds concurrently with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default each asset disposition and shall have occurred also report the dates and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt amounts of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds reinvestments concurrently therewith. All prepayments made hereunder shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to in accordance with Section 2.1(a)(y)(vi1.3(c). Borrowers may request Revolving Advances in the amount --------------
(iii) If Holdings or Borrower or any other Credit Party issues Stock (other than issuances of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as Stock (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release employees of the reserve for such amount) to cause such Revolving Advances to be made, Holdings and its Subsidiaries and (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (stockholders of Holdings as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the Closing Date, the proceeds of which are used to fund all or part of the Revolving Advances to pay purchase price of a Permitted Acquisition), no later than the cost Business Day following the date of such cost receipt of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers proceeds thereof, Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with Section 1.3(c). --------------
(iv) So long as the Term Loan is outstanding, Borrower shall prepay the Obligations on the date that is 10 days after the earlier of (A) the date on which Borrower's annual audited Financial Statements for the immediately preceding Fiscal Year are delivered pursuant to Annex E, commencing with the Fiscal Year ending on or about March 31, ------- 2003, or (B) the date on which such annual audited Financial Statements were required to be delivered pursuant to Annex E, in an amount equal ------- to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofimmediately preceding Fiscal Year. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds Any prepayments from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than Excess Cash Flow paid pursuant to any issuance of Equity Interests of Borrowers this clause (iiv) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.-----------
Appears in 2 contracts
Sources: Credit Agreement (Icon Health & Fitness Inc), Credit Agreement (Icon Health & Fitness Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event of any Collateral resulting termination of all the Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Borrowings and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Borrowings and, after such Borrowings shall have been repaid or prepaid in Net Disposition Proceeds full, replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters of Credit in excess an amount sufficient to eliminate such excess.
(b) Upon the occurrence of $500,000 in a Prepayment Event, the aggregate Borrower shall promptly (and in any fiscal year, event within three Business Days of such Prepayment Event) repay outstanding Borrowings (or make other than Inventory in arrangements reasonably satisfactory to the Ordinary Course Administrative Agent and the Issuing Bank with respect to Letters of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, Amount To Be Prepaid and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the corresponding amount of the Net Disposition Proceeds Commitments will be permanently canceled (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall may not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentreborrowed).
(c) Borrowers The Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied deliver to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstAdministrative Agent, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) secondextent practicable, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowersat least three Business Days’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ prior written notice of such issuance prepayment. Each notice of Equity Interestsprepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the aggregate principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the Revolving Advances. If Agent orders an appraisal date of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofpayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (CGG), Amendment and Restatement Agreement (CGG)
Mandatory Prepayments. (a) When In the event of any termination of all the Revolving Credit Commitments, the Borrower sells shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings and replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, respectively, repay or prepay Revolving Loans and, after the Revolving Loans shall have been repaid or prepaid in full, replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters of Credit in an amount sufficient to eliminate such excess; provided, however, that Letters of Credit shall be cash collateralized or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances backstopped in an amount equal to 103% of the Net Disposition Proceeds of such sale, such repayments to be made promptly but in undrawn face amount thereof. The Borrower shall repay or prepay each Revolving Loan no event more later than three (3) Business Days following receipt of such net proceeds, and until the date of payment, that is 364 days following the date on which such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Revolving Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofwas made.
(b) Notwithstanding Not later than the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and third Business Day following the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Cash Proceeds in fixed or capital assets or other assets useful to the business respect of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds any Asset Sale made pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in 6.05(b) by the amount Borrower and its Restricted Subsidiaries, the Borrower shall apply 100% of the Net Disposition Cash Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f); provided, however, that prepayments by the Borrower under this clause (b) shall only be required if the aggregate amount of mandatory prepayments that would otherwise be required under this clause (b) for such fiscal year exceeds $2,500,000 (with only the amount in excess of such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances required to be made, (ii) all conditions used to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use prepay the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentTerm Loans).
(c) Borrowers shall prepay No later than five Business Days after the outstanding amount of date on which the Term Loans in an amount equal financial statements with respect to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning are required to be delivered pursuant to Section 5.04(a), commencing with the fiscal year ending December 31, 20222019, payable upon delivery the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(f) in an aggregate principal amount (the “ECF Payment Amount”) equal to the excess, if any, of (A) the financial statements to Agent referred to in and required by Section 9.7 ECF Percentage of Excess Cash Flow for such fiscal year but then ended minus, without duplication of amounts reducing Excess Cash Flow, (B) at the option of the Borrower, the aggregate principal amount of (x) any optional prepayments or repurchases of Term Loans, Revolving Loans or Incremental Equivalent Debt that is secured on a pari passu basis with the Credit Facilities prior to the date of prepayment pursuant to this Section 2.13(c), and (y) the amount of any reduction in the outstanding amount of any event Term Loans resulting from any assignment made to Holdings, the Borrower or any of its Restricted Subsidiaries in accordance with Section 2.12(c) (including in connection with any Auction) prior to the date of prepayment pursuant to this Section 2.13(c), in the case of this clause (y), based upon the actual amount of cash paid in connection with the relevant assignment, in each case, only to the extent that (I) such prepayments were not later financed with the proceeds of long-term Indebtedness (other than one hundred twenty Revolving Loans) of the Borrower and its Restricted Subsidiaries, (120II) days after if such prepayment is a prepayment of Revolving Loans or of Incremental Equivalent Debt in the end form of each a revolving facility, such fiscal yearprepayment is accompanied by a corresponding termination or reduction of the Revolving Credit Commitment or relevant commitment, which amount shall be respectively, and (III) such prepayment was not previously applied to reduce the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the any prepayment required by this Section 2.20(cclause (c); provided, subject to adjustment when however, that any such prepayment by the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver Borrower under this clause (c) in respect of any rights Agent or Lenders may have as a result of fiscal year shall only be required to the failure extent (if any) by Borrowers to deliver which the ECF Payment Amount for such financial statementsfiscal year exceeds $2,000,000.
(d) In the event of that Holdings, the Borrower or any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after Restricted Subsidiary shall receive Net Cash Proceeds from the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of IndebtednessIndebtedness for borrowed money of Holdings, repay the Advances Borrower or any other Restricted Subsidiary (other than any cash proceeds from the issuance of Indebtedness for borrowed money otherwise permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by Holdings, such Borrower or such Restricted Subsidiary, apply an amount equal to one hundred percent (100.00%) 100% of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, Net Cash Proceeds to the prepay outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Loans in accordance with the provisions of Section 3.2(b2.13(f), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant [Intentionally Omitted].
(f) Mandatory prepayments of the Term Loans shall be applied to the installments thereof as directed by the Borrower (or, in the absence of direction from the Borrower, in the direct order of maturity); provided that in the case of any issuance mandatory prepayment in respect of Equity Interests any Asset Sale, the Borrower may apply the Net Cash Proceeds thereof ratably to the payment of Borrowers the Term Loans and any other indebtedness that is secured on a pari passu basis with the Term Loans; provided further that any amount that is offered to prepay any such other indebtedness and not accepted by the holders thereof shall be applied to prepay the Term Loans (subject to the right of Lenders to decline such prepayment as described below ).
(g) if the Borrower determines in good faith that any prepayment described under clause (b) or clause (c) above (i) contemplated by Section 6.5(din the case of any prepayment attributable to any Foreign Subsidiary, would violate any local law (e.g., financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra-group or the fiduciary or statutory duties of the directors of the relevant subsidiaries), (ii) used would require the Borrower or any Restricted Subsidiary to fund Capital Expenditures not to exceed $4,000,000 per fiscal year incur a material and adverse Tax liability (including any material and adverse withholding Tax) or (iii) used in the case of any prepayment attributable to fund Permitted Acquisitionsany joint venture, Borrowers would violate any organizational document of such joint venture (or any relevant shareholders’ or similar agreement), in each case if the amount subject to the relevant prepayment were upstreamed or transferred as a distribution or dividend (any amount limited as set forth in clauses (i) through (iii) of this paragraph, a “Restricted Amount”), the amount of the relevant prepayment shall provide Agent be reduced by the Restricted Amount; provided that (i) if the circumstance giving rise to any Restricted Amount ceases to exist within ten 365 days following the end of the relevant fiscal year or the event giving rise to the relevant prepayment, as applicable, the relevant Restricted Subsidiary shall promptly repatriate or distribute the amount that no longer constitutes a Restricted Amount to the Borrower for application to the Term Loans as required above promptly following the date on which the relevant circumstance ceases to exist and (10ii) in no event shall any Restricted Amount increase the Available Amount.
(h) Any Lender (each, a “Declining Lender”) may elect not to accept any mandatory prepayment, except in the case of clause (d) above. Any prepayment amount declined by a Declining Lender (any such declined payment, the “Declined Proceeds”) will be an addition to the Available Basket.
(i) Holdings shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days’ prior irrevocable written notice of such issuance prepayment. Each notice of Equity Interestsprepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16 and, in the case of Section 2.13(d), Section 2.12(e), but shall otherwise be without premium or penalty, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied accompanied by accrued and unpaid interest on the principal amount to be prepaid to, but excluding ,the Revolving Advances. If Agent orders an appraisal date of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofpayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
Mandatory Prepayments. Borrower shall be required to make mandatory prepayments of the Term Loans upon each of the following:
(ai) When the receipt by Borrower or any Borrower sells or otherwise disposes of its Affiliates of any Collateral resulting damages or other amounts from Equipment Supplier under an Equipment Supply Agreement (including as a result of a delayed delivery pursuant to Section 4 of such Equipment Supply Agreement and as a result of any cancellation by Equipment Supplier pursuant to Section 19 of such Equipment Supply Agreement), in Net Disposition Proceeds an amount equal to (A) during the continuance of any Default or Event of Default, the amount of such damages or other amounts, or (B) so long as there is not continuing any Default or Event of Default, such portion of the amount of such damages as Hermes Agent (at the instruction of Hermes) shall designate in excess writing as the amount (if any) of $500,000 the Term Loans no longer eligible for coverage under the Hermes Export Credit Guarantee Documents as a result of such payment of amounts by Equipment Supplier to Borrower;
(ii) any failure of the Hermes Export Credit Guarantee Documents to be effective with respect to any portion of the Term Loans, in an amount equal to such portion of the aggregate in Term Loans; and
(iii) the refund to Borrower of any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Hermes Guarantee Fees by Hermes in an amount equal to the Net Disposition Proceeds Hermes Guarantee Fee Refund. Any such prepayment (including any deemed prepayment with the Hermes Guarantee Fee Refund made in accordance with 2.6.1) shall (A) include payment by Borrower of accrued and unpaid interest on the Term Loans being prepaid and any fees, breakage costs and other charges payable in connection with such salea prepayment under the terms of this Agreement (including Section 3.7), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsif any, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall (B) be applied to remaining amortization payments and the payments at final maturity thereof (x1) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default maturity or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt on a pro rata basis, at the option of such Net Disposition Proceeds Hermes Agent (acting at the instruction of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(viHermes). Borrowers Amounts prepaid as mandatory prepayments of Term Loans may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentre-borrowed.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy Partners LP)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances Advances, subject to the right to reborrow hereunder, in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgent pursuant to an express trust hereby, separate and segregated from all other funds, assets and property of Borrowers. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Repayments under this paragraph (a) shall be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof, determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit Obligations, provided that, after the occurrence and during the continuance of an Event of Default, such repayments shall be applied to the Advances and the other Obligations in such order as Agent may determine in its sole discretion.
(b) Upon either (i) the issuance and/or incurrence of any Indebtedness for borrowed money (other than Indebtedness permitted in accordance with the provisions of Section 3.2(b7.8) by any Borrower or (ii) the issuance of any additional Equity Interests (other than Equity Interests issued to employees, officers or directors of any Borrower) or receipt of any additional capital contributions by any Borrower, Borrowers shall repay the Advances, subject to the right to reborrow hereunder, in an amount equal to the net cash proceeds of such issuance, incurrence and/or capital contribution (i.e., gross proceeds less the reasonable costs of such issuance, incurrence and/or capital contribution), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall to be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) made promptly but in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
no event more than one (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (21) Business Days Day following receipt of such Net Disposition Proceeds net cash proceeds, and until the date of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of payment, such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds proceeds shall be applied by held in trust for Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount an express trust hereby, separate and segregated from all other funds, assets and property of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestmentBorrowers. The foregoing shall not be deemed to be implied consent to any Disposition such issuance and/or incurrence of Indebtedness or other transaction issuance of additional Equity Interests otherwise prohibited by the terms and conditions hereof (to the extent, if any, of any such prohibition contained herein). Repayments under this Agreement or any Other Document.
subparagraph (cb) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b)Obligations, provided however that if no Default or that, after the occurrence and during the continuance of an Event of Default has occurred and is continuingDefault, such repayments shall be applied to cash collateralize any the Advances and the other Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event and on each date the Dollar Equivalent of the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Revolving Loan Cap (other than as a result of a Protective Advance permitted pursuant to Section 2.1(a)(ii)), the Borrowers shall on each such date prepay an amount equal to such excess which shall be applied as follows: first, to prepay the Swing Loans until paid in full, second, to prepay the Revolving Loans until paid in full (without a reduction in the Revolving Credit Commitments), third, to the extent of any Collateral resulting in Net Disposition Proceeds in excess remaining excess, to Cash Collateralize the Letter of $500,000 Credit Obligations in the aggregate manner set forth in Section 10.5 in an amount equal to 103% of such excess and fourth, to the extent after giving effect to any fiscal yearsuch prepayments and provision of Cash Collateral, other than Inventory the FILO Outstandings exceed the FILO Borrowing Base, to prepay FILO Outstandings in an amount equal to such excess; provided that, in the Ordinary Course event any such prepayment requirement arises as a result of fluctuations in currency exchange rates, such prepayment shall be made by the Borrowers within one (1) Business Day after the Administrative Agent notifies the Borrowers thereof.
(b) If (x) at any time during a Cash Dominion Period or Dispositions otherwise permitted under Section 7.1(y) in respect of any Disposition that would result in the occurrence of a Cash Dominion Period, any Loan Party or any of its Restricted Subsidiaries receives any Net Cash Proceeds arising from any Disposition in respect of any Current Asset Collateral outside of the ordinary course of business, the Borrowers shall repay immediately prepay the Advances Loans and Cash Collateralize Letters of Credit (in an amount equal to up to 103% of the aggregate Stated Amount of such Letters of Credit) in accordance with Section 2.9(d), (i) in the case of clause (x) above, in amount equal to 100% of such Net Cash Proceeds arising from any such Disposition, and (ii) in the case of clause (y) above, in an amount equal to the Net Disposition Proceeds of such sale, such repayments amount required to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to prevent a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentCash Dominion Period from occurring.
(c) Borrowers Subject to Section 3.6, all such payments in respect of the Loans pursuant to this Section 2.9 shall prepay be without premium or penalty. All interest accrued on the outstanding principal amount of the Term Loans paid pursuant to this Section 2.9 shall be paid, or may be charged by the Administrative Agent to any loan account(s) of the Borrowers, at the Administrative Agent’s option, on the date of such payment. Interest shall accrue and be due, until the next Business Day, if the amount so paid by the Borrowers to the bank account designated by the Administrative Agent for such purpose is received in such bank account after 3:00 p.m.
(d) All amounts received pursuant to Section 2.9(b) and, at all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Borrowers (subject to the provisions of Section 10.3), on each Business Day, at or before 3:00 p.m., all Same Day Funds credited to any Concentration Account shall, in each case, be applied by the Administrative Agent in the following order: first, to prepay the Swing Loans until paid in full, second, to prepay the Revolving Loans until paid in full (without a reduction in the Revolving Credit Commitments), third, to Cash Collateralize the Letter of Credit Obligations in the manner set forth in Section 10.5 in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in 103% and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstfourth, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepay FILO Outstandings.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Mandatory Prepayments. (i) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any voluntary or involuntary sale or disposition by Borrower or any of its Subsidiaries of property or assets (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), or (d) When any of the definition of Permitted Dispositions), Borrower sells or otherwise disposes shall prepay the outstanding principal amount of any Collateral resulting the Obligations in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under accordance with Section 7.1, Borrowers shall repay the Advances 2.4(d) in an amount equal to 100% of the Net Disposition Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) Borrower shall have given Agent prior written notice of Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such salesale or disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) Borrower or its Subsidiaries, as applicable, complete such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 180 days after the initial receipt of such net proceedsmonies, Borrower and until its Subsidiaries shall have the date option to apply such monies to the costs of paymentreplacement of the property or assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of Borrower and its Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, such proceeds purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be held paid to Agent and applied in trust for Agentaccordance with Section 2.4(d). Nothing contained in this Section 2.4(c)(i) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(ii) Immediately upon the receipt by Borrower or any of its Subsidiaries of any Extraordinary Receipts, Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iii) Immediately upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 6.1(a), (b), (c), (d), (e), (f), (g) or (h)), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The foregoing provisions of this Section 2.4(c)(iii) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(civ) Borrowers Within 10 days of delivery to Agent and the Lenders of audited annual financial statements pursuant to Section 5.3, commencing with the delivery to Agent and the Lenders of the financial statements for Borrower’s fiscal year ended December 31, 2008 or, if such financial statements are not delivered to Agent and the Lenders on the date such statements are required to be delivered pursuant to Section 5.3, 10 days after the date such statements are required to be delivered to Agent and the Lenders pursuant to Section 5.3, Borrower shall prepay the outstanding principal amount of the Term Loans Obligations in accordance with Section 2.4(d) in an amount equal to twenty-five percent (25%) 50% of the Excess Cash Flow of Borrower and its Subsidiaries for each such fiscal year beginning with year; provided that (A) if the Leverage Ratio as of the end of the fiscal year ending December 31, 20222008 is less than 1.25:1.00, payable upon delivery the foregoing percentage shall be reduced to 25% with respect to such year and (B) if the Leverage Ratio as of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such any subsequent fiscal yearyear is less than 1.00 to 1.00, which amount the foregoing percentage shall be applied reduced to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject 25% with respect to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementssubsequent year.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Servicesource International LLC), Credit Agreement (Servicesource International LLC)
Mandatory Prepayments. If on any date (aafter giving effect to any other repayments or prepayments on such date) When any Borrower sells or otherwise disposes the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (i) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans plus (ii) the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in any fiscal yeareffect, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay the Advances on such date that principal amount of Swingline Loans and, after Swingline Loans have been paid in full, Unpaid Drawings and, after Unpaid Drawings have been paid in full, Revolving Loans, in an aggregate amount equal to such excess. If, after giving effect to the Net Disposition Proceeds prepayment of all outstanding Swingline Loans, Unpaid Drawings and Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in effect (any such excess, a “Total Revolving Commitment Excess Amount”), the Borrower shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents equal to such Total Revolving Commitment Excess Amount, and the Administrative Agent shall hold such payment as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent and the Borrower which shall permit certain investments in Cash Equivalents satisfactory to the Administrative Agent and the Borrower, until the proceeds are applied to the Obligations, and which shall provide that a portion of the balance, if any, held in a cash collateral account established under such cash collateral agreement equal to the amount by which such balance exceeds the Total Revolving Commitment Excess Amount from time to time, shall be released to the Borrower, provided that (x) as a result of such salerelease, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing a mandatory prepayment shall not be deemed to be implied consent to any required under the first sentence of this paragraph unless such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofprepayment is made concurrently with such release, and (y) secondimmediately after giving effect thereto, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and or be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of or would result from such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentrelease.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Air Transport Services Group, Inc.), Credit Agreement (Air Transport Services Group, Inc.)
Mandatory Prepayments. If, at any time, the Asset Coverage Ratio as stated on the most recent Valuation Statement delivered to Agent in accordance with Section 5(b)(ii) is less than 200%, the Borrower shall, within ten (a10) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in Business Days following the aggregate in any fiscal yeardate such Valuation Statement is required to be delivered, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances outstanding Loans until the Asset Coverage Ratio after such payments exceeds 200%. The Borrower will give written notice to the Agent at least ten (10) days prior to the occurrence of a Change of Control, which notice shall (A) state the expected effective date of such Change of Control and (B) contain an offer to repay the Loans and all other Obligations hereunder in full as of the effective date of such Change of Control. Notwithstanding the foregoing, any notice of a Change of Control may state that the offer to repay the Loans in accordance with this Section 2(d)(ii) is conditioned upon the effectiveness of the Change of Control, in which case such notice may be revoked by the Borrower (by notice to the Agent on or prior to the effective date of such Change of Control) if such condition is not satisfied. Within five (5) days following the receipt of such notice, the Agent, on behalf of the Lenders, shall notify the Borrower in writing whether the Lenders accept the offer of repayment of the Loans as set forth herein and provide the Borrower with the Agent’s calculation of the repayment amount due under LEGAL_US_E # 171549701.1171549701.5 this Section 2(d)(ii) in an amount equal to the Net Disposition Proceeds sum of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstthe product of (1) 100%, to times (2) the principal amount of the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofLoans, and plus (y) secondall accrued but unpaid interest on the principal amount of the outstanding Loans, which calculations shall be conclusive absent manifest error. In the event the Lenders accept the Borrower’s offer to repay the remaining Advances (including cash collateralization of Loans in accordance with this Section 2(d)(ii), the Borrower shall so repay the Loans and all other Obligations relating to any outstanding Letters of Credit in full in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with Agent’s calculations on the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt effective date of such Net Disposition Proceeds Change of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofControl. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make Lenders reject the prepayment required by this Section 2.20(c), subject Borrower’s offer to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied Loans in accordance with Section 6.62(d)(ii), the Loans and all other Obligations shall remain outstanding and the Transaction Documents shall remain in full force and effect. Each Lender’s determination to accept or reject the Borrower’s offer to repay the Loans as set forth herein shall be made in such ▇▇▇▇▇▇’s sole discretion.
Appears in 2 contracts
Sources: Credit Agreement (Terra Property Trust, Inc.), Credit Agreement (Terra Income Fund 6, LLC)
Mandatory Prepayments. Borrower shall make mandatory prepayments (“Mandatory Prepayments”) as set forth in this Section. Borrower shall make Mandatory Prepayments to the Senior Note Holders for amounts owing under the Senior Notes and to the lenders under the Rabobank Agreement (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to 100% of the Net Disposition Proceeds of such saleStock and 100% of the Net Cash Proceeds received by Borrower or a Subsidiary in respect of any offering by Borrower of Subordinated Debt (other than an offering which increases the outstandings under Borrower’s Subordinated Loan Certificates, such repayments or Subordinated Capital Certificates of Interest in existence prior to be made promptly but the Execution Date and described on Exhibit 4.7 hereto); (b) in no event more an amount equal to 100% of the Net Cash Proceeds from any sale or other disposition by Borrower of any inventory (other than three sales of inventory in the ordinary course); (3c) Business Days following receipt in an amount equal to 100% of such net proceedsthe Net Cash Proceeds from any other sale or other disposition (other than sales of inventory in the ordinary course of business, any sale of the assets of the Pork Division, any sale or other disposition of the SSC Securities and until any sale or dispositions permitted by Section 10.5(d)), or series of related sales or dispositions, by Borrower of any assets not otherwise referenced above in this Section, where the date of payment, such proceeds shall be held in trust Net Cash Proceeds exceed $5,000,000 for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by or $10,000,000 in the terms aggregate for all such sales; and conditions hereof. Such repayments shall be applied (xd) first, in an amount equal to the outstanding principal installments 100% of the Term Loan in Net Cash Proceeds from the inverse order sale or other disposition of the maturities thereof, and (y) second, SSC Securities if Borrower would be otherwise obligated to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or use any portion of such Net Disposition Cash Proceeds in fixed or capital assets or other assets useful to the business redeem any of the Loan Parties and their Subsidiaries, then Senior Unsecured Notes under the Senior Unsecured Note Documents. Each such Mandatory Prepayment of Net Disposition Cash Proceeds or Net Proceeds of Stock shall be applied due immediately upon the receipt by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount Borrower of such Net Disposition Cash Proceeds or Net Proceeds of Stock. All Mandatory Prepayments required pursuant to this Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as distributed (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of Senior Note Holders for amounts owing under the reserve for Senior Notes and to the lenders under the Rabobank Agreement, pro rata, based upon the principal outstanding under their respective Senior Notes and Revolving Loans; provided, however, that if the Senior Note Holders (other than CoBank) waive in writing their right to receive a Mandatory Prepayment pursuant to this Section 4.7 or comparable provision in their respective Senior Notes, Borrower shall make such amount) Mandatory Prepayment to cause such Revolving Advances the lenders under the Rabobank Agreement and to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied CoBank hereunder only and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements their pro rata share as calculated above. The Mandatory Prepayments made to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment CoBank as required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) as provided in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms Subsection 4.6.2 hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Mandatory Prepayments. (ai) When If the Facility Agent notifies PMI that, on any Borrower sells or otherwise disposes interest payment date, the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (A) the aggregate principal amount of all Revolving Credit Advances and Swingline Advances denominated in any fiscal yearEuro then outstanding plus (B) the Equivalent in Euro (determined on the third Business Day prior to such interest payment date) of the aggregate principal amount of all Revolving Credit Advances and Swingline Advances denominated in Dollars then outstanding exceeds 105% of the aggregate Revolving Credit Commitments of the Lenders on such date, PMI and each other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Borrower shall, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) within two Business Days following after receipt of such net proceedsnotice, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to prepay the outstanding principal installments amount of any Revolving Credit Advances and Swingline Advances owing by such Borrower in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the Term Loan in the inverse order aggregate Revolving Credit Commitments of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, Lenders on such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofdate.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts there shall be made by Agent upon which calculation Borrowers a Capital Markets Financing Transaction, PMI shall make prepay outstanding Term Advances in an aggregate amount equal to 50% of the prepayment required by this Section 2.20(cnet proceeds, rounded to the nearest million (with $500,000 being rounded upward), subject to adjustment when of such Capital Markets Financing Transaction received by PMI or received by a Subsidiary of PMI that has issued securities in such Capital Markets Financing Transaction guaranteed by PMI, on the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result last day of the failure by Borrowers to deliver current Interest Period for such financial statementsTerm Advances.
(diii) In the event The Facility Agent shall give prompt notice of any issuance or other incurrence of Indebtedness (other than Permitted Indebtednessprepayment required under this Section 2.15(b) by Borrowersto the Borrowers and the Lenders. Prepayments under Section 2.15(b)(i) shall be allocated first to Swingline Advances, Borrowers shall, no later than three (3) Business Days after ratably among the receipt by Borrowers Swingline Lenders; and any excess amount shall then be allocated to Revolving Credit Advances comprising part of the cash proceeds from any such issuance or incurrence of Indebtednesssame Revolving Credit Borrowing selected by the applicable Borrower, repay ratably among the Revolving Credit Lenders. Prepayments under Section 2.15(b)(ii) shall be allocated to Term Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of ratably among the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLenders.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Philip Morris International Inc.), Credit Agreement (Altria Group, Inc.)
Mandatory Prepayments. (a) When If any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, Indebtedness (other than Inventory any Indebtedness permitted to be incurred in accordance with Section 7.2, but excluding Indebtedness refinanced pursuant to clause (a)(ii) thereof) shall be incurred by Holdings, the Ordinary Course Borrower or any of its Restricted Subsidiaries, the Borrower shall pay an amount equal to 100% of the Net Cash Proceeds of such Indebtedness within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18.
(b) If on any date any of Holdings, the Borrower or Dispositions otherwise permitted under any of its Restricted Subsidiaries shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Borrower shall pay an amount equal to 100% of such Net Cash Proceeds within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 7.12.18; provided that notwithstanding the foregoing, Borrowers shall repay the Advances in (i) on each Reinvestment Prepayment Date, an amount equal to the Net Disposition Proceeds of such sale, such repayments Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be paid to the Administrative Agent to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Section 2.18 and (ii) on the provisions date (the “Trigger Date”) that is three months after any such Reinvestment Prepayment Date, an amount equal to the portion of Section 3.2(b), provided however that if no Default or any Committed Reinvestment Amount with respect to the relevant Reinvestment Event of Default has occurred and is continuing, not actually expended by such repayments Trigger Date shall be paid to the Administrative Agent to be applied to cash collateralize any the Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document2.18.
(c) Borrowers shall prepay the outstanding amount If, for any fiscal year of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning Borrower commencing with the fiscal year ending December 31, 20222012, payable upon delivery there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date thereafter, pay an amount equal to the Excess Cash Flow Percentage of such Excess Cash Flow to the financial statements Administrative Agent to Agent referred be applied to the Obligations in and required by accordance with Section 9.7 for 2.18. Each such payment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 90 days following the Borrower’s fiscal year but end; provided, however, for the fiscal year ending December 31, 2012, Excess Cash Flow shall be calculated for the period commencing July 1, 2012 and ending December 31, 2012.
(d) Amounts to be applied in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount connection with prepayments pursuant to Section 2.12 shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.62.18.
Appears in 2 contracts
Sources: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Mandatory Prepayments. (ai) When If, after giving effect to any termination or reduction of the Commitments pursuant to Section 2.06(b), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower sells shall (A) prepay the Borrowings on the date of such termination or otherwise disposes reduction in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of any Collateral resulting in Net Disposition Proceeds in excess the Borrowings as a result of $500,000 in an LC Exposure, pay to the aggregate in any fiscal year, other than Inventory in Administrative Agent on behalf of the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in Lenders an amount equal to the Net Disposition Proceeds of such sale, such repayments excess to be held as cash collateral as provided in Section 2.07(j).
(ii) The Borrower shall prepay the outstanding principal amount of Loans in amounts equal to one hundred percent (100%) of the aggregate Net Proceeds from any Asset Disposition. Such prepayments shall be made promptly but in no event more than three within one (31) Business Days following receipt of such net proceeds, and until Day after the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to receipt of the Net Proceeds of any such sale otherwise prohibited Asset Disposition by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of such Credit in accordance with the provisions of Section 3.2(b), Party; provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments of aggregate Net Proceeds from Asset Dispositions shall be applied required hereunder to cash collateralize any Obligations related the extent such Net Proceeds are used to outstanding Letters (A) acquire other assets useful in the ordinary course of the business of the Credit lastParties, (B) fund Expansion Capital Expenditures, or (C) make Permitted Acquisitions, in such order as Agent may determineeach case, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
within three hundred sixty (b360) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following days after receipt of such Net Disposition Proceeds by the Credit Parties, or such longer period of the applicable Loan Party’s or its Subsidiary’s election time as may be agreed to reinvest all or by Majority Lenders; provided, however, that any portion of such the Net Disposition Proceeds in fixed or capital assets or other assets useful to not actually reinvested within the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds applicable time period shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to prepaid in accordance with this Section 2.1(a)(y)(vi3.04(c). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and .
(iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document[Reserved].
(civ) Borrowers The Borrower shall prepay the outstanding principal amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00100%) of such cash proceeds in the case of such incurrence or issuance of Indebtednessaggregate Net Proceeds from any Insurance and Condemnation Event received by any Credit Party. Such repayments will prepayments shall be applied made within one (x1) firstBusiness Day after the date of receipt of Net Proceeds of any such Insurance and Condemnation Event by such Credit Party; provided that, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments of aggregate Net Proceeds from Insurance and Condemnation Events shall be applied required hereunder to cash collateralize the extent such Net Proceeds are used to (A) acquire other assets useful in the ordinary course of the business of the Credit Parties, (B) fund Expansion Capital Expenditures, or (C) make Permitted Acquisitions, in each case, within three hundred sixty (360) days after receipt of such Net Proceeds by the Credit Parties, or such longer period of time as may be agreed to by Majority Lenders; provided, however, that any Obligations related to outstanding Letters portion of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances the Net Proceeds not actually reinvested within the applicable time period shall be prepaid in accordance with the terms hereofthis Section 3.04(c).
(ev) Other than pursuant to any issuance of Equity Interests of Borrowers (iA mandatory prepayment under this Section 3.04(c) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures shall not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if reduce the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofaggregate Commitments.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Rattler Midstream Lp), Credit Agreement (Rattler Midstream Lp)
Mandatory Prepayments. (a) When Within 5 Business Days of receipt by a Borrower or any Restricted Subsidiary of proceeds of any sale or disposition by such Borrower sells or otherwise disposes such Restricted Subsidiary of any of their assets, or receipt of proceeds of any casualty or condemnation loss of any Collateral resulting or other assets of any Borrower or any Restricted Subsidiary (excluding (i) sales permitted by Section 7.6(b), Section 7.6(c), Section 7.6(d), Section 7.6(f), Section 7.6(g) and Section 7.6(h), (ii) sales of assets the proceeds of which are reinvested in Net Disposition Proceeds in excess assets of $500,000 a kind then used or useful in the aggregate business of the Borrowers and their Restricted Subsidiaries within 180 days after such assets are sold or disposed of; provided, however, that the proceeds from the sale of any Subsidiary, line of business, fixed assets or operating assets shall not be reinvested in any fiscal year, Permitted Investments (other than Inventory Permitted Investments that are acquired in connection with a Permitted Acquisition)), the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay prepay the Advances Loans in an amount equal to the Net Disposition Proceeds all such proceeds, net of (i) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such saletransaction and payable by such Borrower in connection therewith (in each case, such repayments paid to non-Affiliates) and (ii) Taxes paid or reasonably estimated to be made promptly but in no event more than three payable as a result thereof (3after taking into account any tax sharing arrangements) Business Days following receipt of such net proceedsand, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent with respect to any such sale otherwise prohibited proceeds received by a Foreign Subsidiary, the terms and conditions hereof. Such repayments shall amount of any Taxes that are reasonably estimated to be applied (x) first, to the outstanding principal installments payable by any applicable Affiliate as a result of the Term Loan in the inverse order repatriation of the maturities thereofsuch proceeds; provided, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments net proceeds in an amount of up to $1,000,000 in any Fiscal Year shall not be required to prepay the Loans. Any such prepayment under this clause (a) shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofparagraph (c) below.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all If either Borrower or any portion of such Net Disposition Proceeds in fixed their Restricted Subsidiaries issues any debt or capital assets or equity securities (other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as than (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be madeIndebtedness permitted under Section 7.1, (ii) equity securities issued by a Borrower or a Restricted Subsidiary of the Borrowers as all conditions or a portion of the consideration to funding sent forth be paid in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and connection with a Permitted Acquisition, (iii) Borrowers agree proceeds from the issuance of equity securities that are applied to use the repayment of the Fortegra Preferred Stock and Indebtedness outstanding under the Subordinated Debenture Purchase Agreement, (iv) equity securities issued to Summit Partners its Affiliates, or other Persons co-investing in Fortegra with Summit Partners, and (v) equity issued to senior management of the Borrowers), then no later than the fifth Business Day following the date of receipt of the proceeds of thereof, the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twentythe Mandatory Prepayment Percentage of all such proceeds, net of (x) underwriting discounts and commissions and other reasonable costs paid to non-five percent Affiliates in connection therewith and (25%y) of Excess Cash Flow for each fiscal year beginning with respect to any such proceeds received by a Foreign Subsidiary, the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have Taxes that are reasonably estimated to be payable by any applicable Affiliate as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) repatriation of such cash proceeds in the case of proceeds. Any such incurrence or issuance of Indebtedness. Such repayments will be applied prepayment under this clause (xb) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.62.10(c).
(c) Any prepayments made by the Borrowers pursuant to Section 2.10(a) or (b) above shall be applied by the Administrative Agent as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders based on their respective Pro Rata Shares of such fees and expenses; third, to interest then due and payable on the Loans made to Borrowers, pro rata to the Lenders based on their respective Revolving Commitments; and fourth, to the principal balance of the Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to this subsection (c).
(d) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.6 or otherwise, the Borrower shall immediately repay Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.17. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and second to Eurodollar Loans to the full extent thereof.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fortegra Financial Corp), Revolving Credit Agreement (Fortegra Financial Corp)
Mandatory Prepayments. (a) When If at any time, the aggregate outstanding principal amount of the Term Loans exceeds the Term Loan Maximum Amount at such time, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower sells or otherwise disposes of any Collateral resulting has knowledge thereof, repay the outstanding Term Loans in Net Disposition Proceeds in excess of $500,000 in an amount sufficient to cause the aggregate outstanding principal amount of the Term Loans to be less than or equal to the Term Loan Maximum Amount then in effect.
(b) Concurrently with any fiscal year, other than Inventory in the Ordinary Course Permitted Asset Disposition of Business or Dispositions otherwise permitted under Section 7.1Other Collateral, Borrowers shall repay the Advances prepay Term Loans in an amount equal to the Net Disposition Proceeds of such saledisposition; provided, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsthat, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, Net Proceeds from any single such repayments Asset Disposition in an amount not in excess of $2,000,000 shall not be required to be so applied to cash collateralize any Obligations related the extent Borrowers deliver to outstanding Letters Agent a certificate stating that Obligors intend to use such Net Proceeds to acquire assets that are used or useful in the business of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with Obligors within 180 days of the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds, it being expressly agreed that all such Net Proceeds of not so reinvested shall be immediately applied to prepay the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion Loans upon the expiration of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document180 day period.
(c) Concurrently with the receipt of any proceeds of insurance or condemnation or expropriation awards paid in respect of any Other Collateral, Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)proceeds, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsSection 8.6.2.
(d) In the event of Concurrently with any issuance or other incurrence of Indebtedness Debt by an Obligor (other than Permitted Indebtedness) by BorrowersDebt permitted under Section 10.2.1), Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Borrower shall prepay Term Loans in an amount equal to one hundred percent (100.00%) of such cash the net proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofDebt.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted AcquisitionsOn the Revolver Termination Date, Borrowers shall provide Agent within ten prepay all Term Loans (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bunless sooner repaid hereunder), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Loan and Security Agreement (Summer Infant, Inc.), Loan and Security Agreement (Summer Infant, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Within (i) ten Business Days following the date of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, involving a Mortgaged Vessel (other than Inventory in a Collateral Disposition constituting an Event of Loss) and (ii) the Ordinary Course earlier of Business (A) the date which is 180 days following any Collateral Disposition constituting an Event of Loss involving a Mortgaged Vessel and (B) the date of receipt by Borrower, any of its Subsidiaries or Dispositions otherwise permitted under Section 7.1the Administrative Agent of the insurance proceeds relating to such Event of Loss, Borrowers Borrower shall be required to repay the Advances Loans in an amount equal to the Net Disposition Proceeds product of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments sum of the Term Loan in then outstanding aggregate principal amount of Indebtedness under the inverse order of Senior Credit Facilities and the maturities thereof, Loans and (y) second, a fraction (A) the numerator of which is equal to the remaining Advances appraised value (including cash collateralization as determined in accordance with the most recent report delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 8.01(c) of all Obligations relating the Mortgaged Vessel or Mortgaged Vessels which is/are the subject of such Collateral Disposition and (B) the denominator of which is equal to the Aggregate Mortgaged Vessel Value (as determined in accordance with the most recent appraisal report delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 8.01(c) before giving effect to such Collateral Disposition); provided that (I) the foregoing payment shall be reduced by the amount of any outstanding Letters mandatory prepayment made under the Senior Credit Facilities with respect to such Collateral Disposition and (II) if prior to the date on which payment is due hereunder, the Borrower provides the Administrative Agent with written notice of its intent to consummate a Vessel Exchange with the proceeds, then so long as no Default or Event of Default is continuing, the Credit Parties may use the funds received in such Collateral Disposition in accordance with the provisions of Section 3.2(b9.02(a), provided however that further that, if no a Default or Event of Default has occurred occurs after the date of such Collateral Disposition and is continuingbefore the procedures set forth in Section 9.02(a) are completed, the Parent shall apply the proceeds of such Collateral Disposition in accordance with Section 4.02(a); provided further, that to the extent excess proceeds remain after any Vessel Exchange, such repayments excess shall be applied first to cash collateralize any Obligations related repay the Senior Credit Facilities and second to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with repay the terms hereofLoans.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful anything to the business of the Loan Parties and their Subsidiariescontrary contained elsewhere in this Agreement, all then such Net Disposition Proceeds outstanding Loans shall be applied by Agent to repaid in full on the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentMaturity Date.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Oaktree Capital Management Lp), Credit Agreement (General Maritime Corp / MI)
Mandatory Prepayments. If at any time the amount equal to the sum of (ai) When any Borrower sells or otherwise disposes the outstanding principal amount of any Collateral resulting in Net Disposition Proceeds in excess all Revolving Credit Loan Advances and the Swing Loan Advances, plus (ii) the Letter of $500,000 in Credit Liabilities, exceeds the aggregate in any fiscal yearamount of the Revolving Credit Commitments, the Borrower shall promptly prepay Revolving Credit Loan Advances, Swing Loan Advances and the Letter of Credit Disbursements by the amount of the excess or, if no Revolving Credit Loan Advances, Swing Loan Advances or Letter of Credit Disbursements are outstanding, the Borrower shall immediately pledge to the Agent cash or Cash Equivalent Investments (subject to no other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Liens) in an amount equal to the excess as security for the Obligations. Any such mandatory prepayments shall be applied first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the amount prepaid to the date of prepayment. After any reduction in the Commitments pursuant to Section 2.11, the Borrower shall promptly prepay the outstanding Revolving Credit Loan Advances and Swing Loan Advances by the amount which the sum of the outstanding principal amount of the Advances under the Revolving Credit Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the aggregate amount of the Revolving Credit Commitments, as reduced. Upon the Disposition of any assets (other than Dispositions of assets permitted under Sections 9.8(a) and (c)), the Borrower shall promptly prepay the Advances by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), Disposition; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoinghowever, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment Dispositions permitted under Section 2.20(aSections 9.8(b) and (d), so long as no Event of Default the Borrower shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall promptly prepay the outstanding amount of the Term Loans in Advances by an amount equal to twenty-five percent (25%) the Net Proceeds of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied Disposition to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver extent such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers exceeds either (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 1,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, Disposition or (ii) as a result of any taking or condemnation of any assets or property $3,000,000 in the aggregate for all Dispositions which have occurred since the date hereof. Any such mandatory prepayments shall be applied in accordance first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to the Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with Section 6.6accrued and unpaid interest on the amount prepaid to the date of prepayment.
Appears in 2 contracts
Sources: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Mandatory Prepayments. (a) When Without duplication of Section 2.12(b), if any Borrower sells or otherwise disposes Indebtedness shall be incurred by any Group Member which constitutes a Junior Debt Incurrence Event, an amount equal to 50% of any Collateral resulting in Net Disposition Proceeds in excess the cash proceeds (net of $500,000 in (i) costs and fees associated with derivative transactions (including, without limitation, hedging transactions), the aggregate amount of share repurchases made with the proceeds of such Junior Debt Incurrence Event and permitted by Section 7.6(k), attorneys’ fees, accountants’ fees, investment banking fees, underwriting discounts and commissions and other customary costs, fees and expenses actually incurred in connection therewith and net of taxes paid and the Borrower’s reasonable and good faith estimate of income, franchise, sales, and other applicable taxes required to be paid by any fiscal yearGroup Member in connection with such Junior Debt Incurrence Event and (ii) other amounts reasonably acceptable to the Administrative Agent) thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e).
(b) Without duplication of Section 2.12(a), if any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Inventory Credit Agreement Refinancing Indebtedness)), 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 other amounts as set forth in Section 2.12(e).
(c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered within three Business Days after receipt thereof, such Net Cash Proceeds shall be applied after such third Business Day toward the Ordinary Course prepayment of Business or Dispositions otherwise permitted under the Loans and other amounts as set forth in Section 7.12.12(e); provided that notwithstanding the foregoing, Borrowers shall repay the Advances in on each Reinvestment Prepayment Date, an amount equal to the Net Disposition Proceeds Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Loans and other amounts as set forth in Section 2.12(e).
(d) If, for any fiscal year of the Borrower commencing after the end of the fiscal year ending December 31, 2021, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the difference of 50% of such saleExcess Cash Flow minus the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to Holdings, the Borrower or any Subsidiary made pursuant to Section 10.6(h), with the amount of such repayments prepayment being equal to the amount actually paid by the Borrower (or Holdings or any Subsidiary, as applicable); provided, that, with respect to the open market purchase made pursuant to Section 10.6(h)(i) on the Third Amendment Effective Date, Excess Cash Flow shall not be reduced by the portion of such open market purchase funded with the proceeds of the Third Amendment Term Loan) of the Term Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, any voluntary prepayments of the Revolving Loans, made during such year; provided that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 3.00 to 1.00 but greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than the earliest of three Business Days after (i) the date on which the financial statements of Holdings 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, and (ii) the date such financial statements are actually delivered.
(e) Amounts to be applied in connection with prepayments made promptly but pursuant to (i) this Section 2.12 (other than Section 2.12(a)) shall be applied to the prepayment of installments due in respect of the Term Loans in direct order of maturity for the next four scheduled payments of Term Loans required under Section 2.3, and then ratably to the remaining scheduled installments due in respect of the Term Loans in accordance with Sections 2.3 and 2.18(b); and (ii) Section 2.12(a) shall be applied to the prepayment of installments due in respect of the Term Loans in inverse order of maturity (including to the bullet payment on the Term Loan Maturity Date); provided that any Term Lender may decline any such prepayment made pursuant to this Section 2.12 (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts; second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a cash collateral account for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender; and fourth, to the extent of any residual, retained by the Borrower. Each prepayment of the Loans under this Section 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event more all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than three (3) Business Days following receipt prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such net proceeds, prepayment and until (iii) the date options of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed each Term Lender to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments decline or accept its share of the Term Loan in the inverse order of the maturities thereof, such prepayment and (y) secondto accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than one (1) Business Day prior to the Mandatory Prepayment Date.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction.
(g) No prepayment fee or other penalty or premium shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12.
(h) Notwithstanding any provisions of this Section 2.12 to the contrary, to the remaining Advances extent the Borrower determines, acting in good faith, that any repatriation or distribution (including cash collateralization or deemed repatriation or deemed distribution for tax purposes) to the Borrower of all Obligations relating Net Cash Proceeds or Excess Cash Flow described in this Section 2.12 that are attributable to any outstanding Letters Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith), or would be prohibited or restricted by applicable Requirements of Credit Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds or Excess Cash Flow shall not be required to be so repatriated or distributed and the relevant amounts shall not be required to be prepaid in accordance with this Section 2.12. To the provisions extent that the relevant adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each case, would no longer be applicable at any time in the twelve (12) month period following the day that the relevant amounts would otherwise be required to be prepaid pursuant to this Section 3.2(b)2.12, provided however the Borrower shall cause such amounts to be prepaid as and to the extent otherwise required pursuant to this Section 2.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in the applicable Operating Documents or material agreements, in each case, that if no Default or Event would otherwise limit an obligation of Default has occurred and is continuing, such repayments shall be applied the Borrower to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances make a mandatory prepayment in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection 2.12.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Ribbon Communications Inc.), Credit Agreement (Ribbon Communications Inc.)
Mandatory Prepayments. (a) When Within five (5) Business Days of receipt by PRGX or any Borrower sells or otherwise disposes Subsidiary of cash proceeds of any Collateral resulting in Net Disposition Proceeds in excess sale or disposition by PRGX or such Subsidiary of $500,000 in any of its assets other than to a Borrower or a Subsidiary, to the aggregate in extent permitted by this Agreement, or cash proceeds from any fiscal yearcasualty insurance policies or eminent domain, condemnation or similar proceedings, other than Inventory cash proceeds from sales of inventory or equipment in the Ordinary Course ordinary course of Business business, in each case, in an aggregate amount exceeding $100,000, Borrowers shall prepay the Obligations in an amount equal to all such cash proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses (including, without limitation, amounts used to retire liens on the property transferred, transfer taxes and income taxes) properly attributable to such transaction and payable by PRGX or Dispositions otherwise such Subsidiary in connection therewith (in each case, paid to non-Affiliates), provided, however, with respect to cash proceeds of casualty insurance policies, PRGX and its Subsidiaries shall be permitted to utilize such cash proceeds to repair and/or replace any such affected assets so long as no Event of Default has occurred or is continuing. Any such prepayment shall be applied in accordance with paragraph (d) below.
(b) If PRGX or any Subsidiary issues any Indebtedness or equity securities (other than (i) Indebtedness permitted under Section 7.1, (ii) equity securities issued by a Subsidiary to PRGX or another Subsidiary and (iii) equity issuances upon the exercise of stock options granted under an equity incentive plan of PRGX) for a consideration consisting of cash, in each case, in an aggregate amount exceeding $100,000, then no later than the Business Day following the date of receipt of the cash proceeds thereof, Borrowers shall repay prepay the Advances Obligations in an amount equal to the Net Disposition Proceeds of all such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net cash proceeds, net of underwriting discounts and until the date of payment, commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied in accordance with Section 2.12(d).
(xc) Within thirty (30) days after the date in which the financial statements are delivered in accordance with Section 5.1(a) for the Fiscal Year (commencing with the Fiscal Year ending December 31, 2010), the Borrowers shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow if the Borrowers’ Leverage Ratio is greater than to 0.75 : 1.00. Calculations relating to determination of the Borrowers’ Leverage Ratio and the amount of payments of Excess Cash Flow shall be made as of the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2010) based upon the annual audited financial statements of PRGX and its Subsidiaries delivered by the Borrowers pursuant to Section 5.1(a).
(d) Any prepayments made by the Borrowers pursuant to Sections 2.12(a), (b) or (c) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the outstanding Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loan Loans in the inverse order of the maturities thereof, and (y) secondmaturity; fifth, to the remaining Advances (including cash collateralization principal balance of all Obligations relating the Revolving Loans, until the same shall have been paid in full, pro rata to any outstanding the Lenders based on their respective Revolving Commitments and sixth, to Cash Collateralize the Letters of Credit in accordance with Section 2.22(g) in an amount in cash equal to 105% of the provisions LC Exposure as of such date plus any accrued and unpaid fees thereon, provided, however, that clauses fifth and sixth in this subsection (d) shall not apply to prepayments made by the Borrowers pursuant to Section 3.2(b)2.12(c) unless an Event of Default exits and is continuing. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth and sixth above, provided however that if no Default or unless an Event of Default has occurred and is continuingcontinuing and the Required Lenders holding Revolving Commitments so request. Upon Borrowers’ Agent’s written request, such repayments all mandatory prepayments made by Borrowers pursuant to Section 2.12 shall be applied to cash collateralize any Obligations related to outstanding Letters held by the Administrative Agent as Cash Collateral for the benefit of Credit last) in such order as Agent may determine, subject to the Lenders and the Issuing Bank pending expiration of the then applicable Interest Period if the Borrowers’ ability to re-borrow Revolving Advances Agent has a reasonable basis for believing that, in accordance with so doing, the terms hereofBorrowers will avoid or mitigate the payment of any material amount of interest rate breakage fees which would otherwise result from an immediate application of such prepayment amounts.
(be) Notwithstanding the foregoing, with respect to If at any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to time the Revolving Advances and Agent shall implement a reserve equal to Credit Exposure of all Lenders exceeds the amount of such Net Disposition Proceeds Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in 2.8 or otherwise, the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term immediately repay Revolving Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by unpaid interest on such excess amount and any amounts due under Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount 2.19. Each prepayment shall be applied first to the outstanding principal installments Base Rate Loans to the full extent thereof, and next to LIBOR Index Rate Loans to the full extent thereof. If after giving effect to prepayment of all Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Term Loan in Administrative Agent and for the inverse order benefit of the maturities thereofIssuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such account shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit administered in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last2.22(g) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by If at any time, the Revolving Credit Exposure of all Lenders shall exceed the Borrowing Base, then the Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall immediately prepay Revolving Loans in an amount sufficient to eliminate such excess. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and next to LIBOR Index Rate Loans to the full extent thereof. If after giving effect to prepayment of all Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Borrowing Base, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 6.62.22(g) hereof.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (PRGX Global, Inc.), Revolving Credit and Term Loan Agreement (PRGX Global, Inc.)
Mandatory Prepayments. (a) When If at any time a Borrowing Base Deficiency exists, the Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearshall, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than within three (3) Business Days following receipt of such net proceeds, and until written notice thereof from the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by Blackstone Asset Based Finance Representative or the terms and conditions hereof. Such repayments shall be applied Administrative Agent (x) first, to acting at the outstanding principal installments direction of the Term Loan Blackstone Asset Based Finance Representative) (a “Mandatory Prepayment Notice”), either (1) prepay the Loans in the inverse order of the maturities thereofan aggregate amount necessary to eliminate such Borrowing Base Deficiency, and and/or (y2) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit deliver a Cure Notice in accordance with the provisions immediately succeeding paragraph (and, in the case of Section 3.2(bthis clause (2), provided however that if no Default the Borrower shall prepay the Loans in an aggregate amount necessary to eliminate such Borrowing Base Deficiency on or Event prior to the related Extended Mandatory Prepayment Date). Each mandatory prepayment of Default has occurred and Loans under this Section 2.7(c) is continuing, such repayments referred to as a “Mandatory Prepayment”. Mandatory Prepayments of Loans pursuant to this Section 2.7(c) shall not be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability the Priority of Payments. Upon delivery of a Mandatory Prepayment Notice to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect Borrower pursuant to any Net Disposition Proceeds which would otherwise give rise to a prepayment under this Section 2.20(a2.7(c), so long as no Event of Default shall have occurred and be continuing and the Borrowing Administrative Agent shall have notified Agent promptly notify each Lender of the contents thereof and of such Lender’s ratable share (if any) of such prepayment. If the Borrower requires additional capital in order to fund a Mandatory Prepayment or any additional amounts payable in connection therewith, the Borrower shall, within two (2) three Business Days following receipt of such Net Disposition Proceeds Mandatory Prepayment Notice, (i) notify the Administrative Agent of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant additional capital required in order to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances fund a Mandatory Prepayment or any additional amounts payable in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment connection therewith, and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied deliver to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event Administrative Agent a written report (a “Cure Notice”) that the financial statements are not so delivered, then includes a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject feasible plan to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver timely cure such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, Borrowing Base Deficiency acceptable to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent Blackstone Asset Based Finance Representative in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied including evidence satisfactory to the Revolving Advances. If Agent orders Blackstone Asset Based Finance Representative that the Equity Holder expects to receive capital from investors in an appraisal of amount sufficient to make such Mandatory Prepayment in full no later than the Equipment Extended Mandatory Prepayment Date (and Real Property and such proceeds will be contributed by the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied Holder to the Revolving AdvancesBorrower), and which plan shall give effect to all Unsettled Purchase Assets and Unsettled Sale Assets included in the Borrowing Base. If Agent orders an appraisal Upon receipt of a Cure Notice, any Mandatory Prepayment shall not be considered due until the Equipment and Real Property and date (the then outstanding balance related “Extended Mandatory Prepayment Date”) that is the earlier of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments fifth Business Day after the first day of the Term Loan in calendar month immediately following the inverse order date of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount such Mandatory Prepayment Notice and (y) second, the Business Day following the date upon which the Borrower has received capital in an amount sufficient to make such Mandatory Prepayment in full. The Borrower agrees to provide prompt notice to the remaining Advances (Blackstone Asset Based Finance Representative if any component of the plan set forth in the Cure Notice fails to be completed, including cash collateralization of all Obligations relating any investor from which Borrower expects to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default receive capital rejecting or Event of Default has occurred and is continuing, otherwise not agreeing to timely fund such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofcapital.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund)
Mandatory Prepayments. (a) When Until the Rollover Date, if the Borrower or any Subsidiary receives any Net Cash Proceeds from any Asset Sale, the Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances offer to prepay Loans in an amount equal to 100% of such Net Cash Proceeds (in the case of an Asset Sale by a Foreign Subsidiary, net of additional taxes payable (or that would be payable if the Net Disposition Cash Proceeds of such sale, such repayments were repatriated to be made promptly but the United States) or reserved against as a result thereof) in no event more than three accordance with Section 2.10(b)(v) on or prior to the date which is ten (310) Business Days following after the date of the realization or receipt of such net proceeds, and until the date of payment, Net Cash Proceeds; provided that no such proceeds offer to make a prepayment shall be held in trust for Agent. The foregoing required pursuant to this Section 2.10(b)(i)(A) with respect to such Net Cash Proceeds that the Borrower shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit reinvest in accordance with the provisions of Section 3.2(b2.10(b)(i)(B), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, With respect to any Net Cash Proceeds realized or received with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)Asset Sale, so long as no Event of Default shall have occurred and be continuing and at the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds option of the applicable Loan Party’s or its Subsidiary’s election to Borrower the Borrower may reinvest all or any portion of such Net Disposition Cash Proceeds in fixed or capital assets or other assets useful to for the Borrower’s or a Subsidiary’s business within twelve (12) months following receipt of the Loan Parties and their Subsidiaries, then such Net Disposition Cash Proceeds; provided that any such Net Cash Proceeds that are not so reinvested within the applicable time period set forth above shall be applied by as set forth in Section 2.10(b)(i)(A) within five (5) Business Days after the end of the applicable time period set forth above.
(ii) If a Change in Control occurs, the Borrower shall offer to prepay all Loans within 30 days following the date of such Change in Control.
(iii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clause (i) of this Section 2.10(b) at least three (3) Business Days prior to the Revolving Advances date of such prepayment and Agent or any prepayment pursuant to clause (iii) of this Section 2.10(c) at least ten (10) Business Days prior to the date of such prepayment. Each such notice shall implement specify the date of such prepayment and provide a reserve equal to reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share of the prepayment.
(iv) Notwithstanding any other provisions of this Section 2.10(b) to the contrary, to the extent that any or all the Net Disposition Cash Proceeds of any Asset Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds 2.10(b)(i) (a “Foreign Disposition”) are prohibited or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect delayed by applicable local Law from being repatriated to the release United States, the portion of such Net Cash Proceeds so affected will not be required to be applied to offer to repay Loans at the reserve for such amounttimes provided in this Section 2.10(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as applicable Law will not permit or delays repatriation to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Law to permit such Revolving Advances to be maderepatriation), (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) and once such repatriation of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost any of such cost of reinvestment. The foregoing shall not affected Net Cash Proceeds is permitted under the applicable Law, such repatriation will be deemed to promptly effected and such repatriated Net Cash Proceeds will be implied consent to any Disposition or other transaction prohibited by the terms promptly (and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty five (1205) days Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the end repayment of each the Loans pursuant to this Section 2.10(b) to the extent provided herein; provided, however, that to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition would have material adverse tax consequences, the Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (ii), on or before the date 12 months following the date of receipt of such fiscal yearNet Cash Proceeds, which (x) the Borrower shall apply an amount equal to such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable (or that would be payable if the Net Cash Proceeds were repatriated to the United States) or reserved against if such Net Cash Proceeds had been repatriated or (y) such Net Cash Proceeds shall be applied to the outstanding principal installments repayment of the Term Loan in the inverse order Indebtedness of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsForeign Subsidiary.
(dv) In Each prepayment of Loans pursuant to this Section 2.10(b) shall be offered to the event of Lenders on a pro rata basis pursuant to procedures satisfactory to the Administrative Agent (it being understood that any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from Lender may decline to participate in any such issuance or incurrence prepayment).
(vi) Any prepayment of IndebtednessLoans pursuant to this Section 2.10(b) shall be accompanied by (i) accrued interest to the extent required by Section 2.12, repay (ii) break funding payments to the Advances in an amount equal to one hundred percent extent required by Section 2.15 and (100.00%iii) of such cash proceeds in the case of such incurrence or issuance a prepayment pursuant to Section 2.10(b)(ii) following the occurrence of Indebtedness. Such repayments will be applied (x) firsta Demand Failure Event, a premium equal to the outstanding principal installments 1% of the Term Loan in the inverse order principal amount of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLoans prepaid.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Interim Loan Agreement (Constellation Brands, Inc.), Interim Loan Agreement (Constellation Brands, Inc.)
Mandatory Prepayments. (a) When If on any Borrower sells or otherwise disposes date the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (i) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans (after giving effect to all other repayments thereof on such date) plus (ii) the Letter of Credit Outstandings on such date exceeds the Total Revolving Loan Commitment as then in any fiscal yeareffect, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay on such date the Advances principal of Swingline Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans, in an aggregate amount equal to such excess. If, after giving effect to the Net Disposition Proceeds prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower agrees to pay to the Agent on such sale, date an amount in cash and/or Cash Equivalents equal to such repayments excess (up to the aggregate amount of Letter of Credit Outstandings at such time) and the Agent shall hold such payment as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be made promptly but entered into in no event more than three form and substance reasonably satisfactory to the Agent (3) Business Days following receipt of such net proceeds, and which shall permit certain investments in Cash Equivalents reasonably satisfactory to the Agent until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be are applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bsecured obligations), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with With respect to each repayment of Revolving Loans required by Section 4.02(a), the Borrower may designate the Types of Revolving Loans which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which made; provided, that (i) Eurodollar Loans may be designated for repayment pursuant to Section 4.02(a) only on the last day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest Periods ending on such date of required prepayment and all Base Rate Loans have been paid in full; (ii) if any Net Disposition Proceeds which would otherwise give rise repayment of Eurodollar Loans made pursuant to a prepayment under Section 2.20(a)single Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount, so long as no Event such Borrowing shall be immediately converted into Base Rate Loans; and (i) each repayment of Default shall have occurred and be continuing and the any Revolving Loans made pursuant to a Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied pro rata among such Revolving Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Agent shall, subject to the Revolving Advances and Agent shall implement above, make such designation in its sole discretion with a reserve equal view, but no obligation, to minimize breakage costs owing under Section 1.11.
(c) Notwithstanding anything to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances contrary contained elsewhere in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advancethis Agreement, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to all then outstanding Swingline Loans shall be repaid in full on the release of the reserve for such amount) to cause such Revolving Advances to be madeSwingline Expiry Date, (ii) all conditions to funding sent forth then outstanding Revolving Loans shall be repaid in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied full on the Final Maturity Date and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the all then outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to repaid in full on the outstanding principal installments date on which a Change of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsControl Event occurs.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Therma Wave Inc), Credit Agreement (Therma Wave Inc)
Mandatory Prepayments. (ai) When Subject to the payment of the amounts described in Section 2.6(d), in the event the CP Insurance Policy is terminated, cancelled or modified in writing for any Borrower sells reason (provided that any such modification has not been consented to by the Collateral Agent) or if the Issuer shall dispute in writing the validity of the CP Insurance Policy or its liability for coverage thereunder, the Issuer shall prepay the entire outstanding principal amount of the Notes no later than five (5) Business Days following such termination, cancellation, modification or dispute.
(ii) Subject to the payment of the amounts described in Section 2.6(d), if the Obligors sell or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess all or substantially all of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Issuer shall repay prepay the Advances Notes in an amount equal to the Net Disposition Cash Proceeds of such sale, such repayments sale or disposition. Such repayment of the Notes is to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsCash Proceeds by an Obligor, and until the date of payment, such proceeds shall be held in trust for Agentthe Collateral Agent on behalf of itself and on behalf of the other Secured Parties. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments .
(iii) Proceeds received by any Obligor, the Collateral Agent or the Note Administrative Agent under the CP Insurance Policy, shall be paid by the relevant recipient to the Note Purchasers and applied (x) first, to the outstanding principal installments amount of the Term Loan in Notes within one (1) Business Day of receipt thereof.
(iv) Net Cash Proceeds received by any Obligor (A) under any property or casualty insurance policy of any Obligor (other than business interruption insurance) on account of damage or destruction of any Collateral or under any condemnation award as a result of any taking or condemnation of any Collateral) shall be applied to the inverse order outstanding principal amount of the maturities Notes within ten (10) Business Days of receipt thereof, and (yB) secondwith respect to any Disposition (other than Dispositions described in clause (ii) above or any Disposition permitted under clauses (a) through (l) of the definition of “Permitted Dispositions”) shall be applied to the outstanding principal amount of the Notes within ten (10) Business Days of receipt thereof; provided that with respect to any Net Cash Proceeds described in this clause (iv), the Issuer may, within such ten (10) Business Day period, elect by written notice to the Collateral Agent to apply such Net Cash Proceeds to repair or replace Collateral or reinvest in assets of a kind then used or usable in the business of the Obligors and their Subsidiaries (other than cash, Cash Equivalent or other current assets), and if it does so elect, shall not be required to apply such Net Cash Proceeds to prepay the Notes as set forth above except to the extent of any such Net Cash Proceeds that it has not so applied to repair or replace Collateral or reinvest in such assets within 180 days of receiving such Net Cash Proceeds (or, if a binding commitment in respect thereof has been entered into within such 180-day period, to the remaining Advances extent of any such Net Cash Proceeds that it has not so applied to repair or replace Collateral or reinvest in assets within 180 days after the end of such 180-day period) (including cash collateralization of all Obligations relating or, in each case, such longer period acceptable to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bCollateral Agent), provided however that if so long as (x) no Default or Event of Default has occurred and is continuing, continuing at the time of such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastreinvestment and (y) such Net Cash Proceeds are held in such order as Agent may determinea Deposit Account, subject to Borrowers’ ability a Deposit Account Control Agreement prior to re-borrow Revolving Advances in accordance with the terms hereofconsummation of such reinvestment.
(bv) Notwithstanding Subject to the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under payment of the amounts described in Section 2.20(a2.6(d), so long as if the Obligors incur any Indebtedness not expressly permitted to be incurred pursuant to Section 7.6, the Issuer shall prepay the Notes in an amount equal to the Net Cash Proceeds of such Indebtedness. Such repayment of the Notes is to be made promptly but in no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two event more than one (21) Business Days Day following receipt of such Net Disposition Cash Proceeds by an Obligor, and until the date of payment, such proceeds shall be held in trust for the Collateral Agent on behalf of itself and on behalf of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSecured Parties.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Note Purchase and Guaranty Agreement (Next.e.GO B.V.), Note Purchase and Guaranty Agreement (Athena Consumer Acquisition Corp.)
Mandatory Prepayments. (ai) When If at any time the outstanding principal amount of all Revolver Loans plus the sum of all outstanding Swingline Loans and LC Exposure exceeds the then available Aggregate Maximum Revolver Amount, the Borrower sells or otherwise disposes agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, an amount equal to such excess with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolver Loans and third, with respect to any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 in Credit then outstanding, a payment of cash collateral into a cash collateral account opened by the aggregate in any fiscal yearAdministrative Agent, other than Inventory in for the Ordinary Course benefit of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Lenders in an amount equal to the Net Disposition Proceeds aggregate then undrawn and unexpired amount of such sale, Letters of Credit (such repayments cash collateral to be applied in accordance with Section 2.09(b)).
(ii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance by the Borrower or any of its Subsidiaries or other Debt not permitted pursuant to this Agreement. Such prepayment shall be made promptly but in no event more than three within five (35) Business Days following receipt of such net proceeds, and until after the date of paymentreceipt of Net Cash Proceeds of any such transaction.
(iii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to fifty percent (50%) (or if the Borrower’s Leverage Ratio is less than 5.0:1.0, such proceeds 0%) of the aggregate Net Cash Proceeds from any Equity Offering by or capital contribution to the Borrower or any of its Subsidiaries other than (a) the exercise price on stock options issued as part of employee compensation and (b) the Equity Issuance. Such prepayment shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to made within five (5) Business Days after the date of receipt of Net Cash Proceeds of any such sale otherwise prohibited transaction.
(iv) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Disposition by the terms and conditions hereofBorrower or any of its Subsidiaries. Such repayments prepayments shall be applied made within five (x5) firstBusiness Days after receipt of Net Cash Proceeds of any such transaction by the Borrower or any of its Subsidiaries; provided that, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastrequired hereunder (A) in such order as Agent may determine, subject connection with up to Borrowers’ ability $50,000,000 of aggregate Net Cash Proceeds in any fiscal year from Dispositions (other than any Disposition pursuant to re-borrow Revolving Advances in accordance with the terms hereof.
of the Pioneer Option Agreement) by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (b360) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following days after receipt of such Net Disposition Cash Proceeds of by the applicable Loan Party’s or its Subsidiary’s election to reinvest all Borrower or any portion of such Net Disposition Proceeds its Subsidiaries in fixed similar replacement assets, or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds (B) in connection with Dispositions permitted pursuant to Section 2.1(a)(y)(vi9.17 (other than Section 9.17(f). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document).
(cv) Borrowers The Borrower shall prepay the outstanding amount of the Term Loans in an amount the manner set forth in clause (vi) below in amounts equal to twenty-five one hundred percent (25100%) of Excess the aggregate Net Cash Flow for each fiscal year beginning with Proceeds from any Insurance and Condemnation Event by the fiscal year ending December 31, 2022, payable upon delivery Borrower or any of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofits Subsidiaries. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such prepayments shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than within three (3) Business Days after the receipt by Borrowers of the cash proceeds from Net Cash Proceeds of any such issuance transaction by the Borrower or incurrence any of Indebtednessits Subsidiaries; provided that, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments shall be applied required hereunder in connection with up to cash collateralize $50,000,000 of aggregate Net Cash Proceeds in any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year from Insurance and Condemnation Events by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (iii360) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice days after receipt of such issuance Net Cash Proceeds by the Borrower or any of Equity Interests, and Agent its Subsidiaries in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofsimilar replacement assets.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Atlas Pipeline Holdings, L.P.), Revolving Credit and Term Loan Agreement (Atlas Pipeline Partners Lp)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Within 10 Business Days after the consummation of any Collateral resulting in Net Disposition Proceeds in excess sale or other disposition of $500,000 in Property (including the sale or other disposition of Receivables) by the Borrower or any Restricted Subsidiary if the aggregate in any fiscal yearfair market value of the consideration received by the Borrower or its Restricted Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for all other than Inventory in such sales or other dispositions consummated during the Ordinary Course period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within 5 Business or Dispositions otherwise permitted under Section 7.1Days after receipt of such Officer’s Certificate the Administrative Agent, Borrowers on behalf of the Required Lenders, shall repay have notified the Advances Borrower of the Required Lenders’ election to forego prepayment, then on the date that is 7 Business Days after the date on which the Borrower shall have delivered such Officer’s Certificate to the Administrative Agent and the Lenders the Borrower shall make a prepayment of the Loans in an amount equal to the Ratable Share of the amount of Net Disposition Cash Proceeds certified in such Officer’s Certificate (or such lesser principal amount as shall then be outstanding), at 100% of the principal amount so prepaid. Notwithstanding the foregoing, (i) up to 100% of the Net Cash Proceeds of such sale, such repayments sales or other dispositions with respect to be made promptly but which the Borrower shall have given the Administrative Agent written notice (set forth in no event more than three the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (3a)) Business Days following receipt of such net proceeds, and until its intention to repair or replace the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent Property subject to any such sale otherwise prohibited or other disposition or invest such Net Cash Proceeds in the purchase of Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or an Unrestricted Subsidiary permitted hereunder (and provided that if such Guarantor or Unrestricted Subsidiary is a newly formed Person, such Person shall promptly use the portion of the Net Cash Proceeds received by it for the sale of its equity interests in order to purchase Property to be used by it in its business)) to be used by one or more of the Borrower or the Guarantors in their businesses (such repair, replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be subject to the provisions of the first two sentences of this clause (a) unless and to the extent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the Net Cash Proceeds from sales or other dispositions of Property (including the sale or other disposition of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the fair market value of the consideration of the dispositions of the Property with respect to which the Net Cash Proceeds shall have been subject to Reinvestment) shall be subject to the provisions of the first two sentences of this clause (a).
(b) Any prepayments made by the terms and conditions hereof. Such repayments Borrower pursuant to Section 2.12(a) above shall be applied by the Administrative Agent as follows: first to repay Term Loans on a pro rata basis as to each of Term Loan A, Term Loan A-1 and, unless otherwise provided in the Incremental Facility Amendment applicable to the related Incremental Term Loan, each Incremental Term Loan (with the application of such prepayment to be, as to each of Term Loan A, Term Loan A-1 and Incremental Term Loan, to the remaining scheduled principal installments owing in respect of such Term Loan under Section 2.9(c) (or, in the case of Incremental Term Loans, as set forth in the Incremental Facility Amendment applicable to the related Incremental Term Loan) on a pro rata basis (including the final installment due and payable on each such Term Loan)), second, to repay outstanding Swingline Loans and third to repay outstanding Revolving Loans. All prepayments in respect of Revolving Loans required under clause (b) shall be accompanied by a concurrent, automatic, irrevocable reduction and partial termination of the Revolving Commitments in an amount equal to such required prepayment, with such reduction and partial termination allocated ratably among the Lenders in proportion to their respective Pro Rata Share.
(c) If at any time the Revolving Credit Exposure of all Lenders exceeds the lesser of (i) the Aggregate Revolving Commitment and (ii) the Borrowing Base, in each case, then in effect, the Borrower shall immediately repay Revolving Loans in an amount equal to such excess (or, if such excess exceeds $10,000,000, the Ratable Share of such excess), together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and next to Eurodollar Loans to the full extent thereof. If such excess (or if the excess is greater than $10,000,000, the Ratable Share of such excess) is greater than the outstanding principal amount of the Revolving Loans, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Letters of Credit by depositing cash collateral in an amount equal to such excess (or, if the excess is greater than $10,000,000, the Ratable Share of the remaining excess) plus any accrued and unpaid fees thereon into a special collateral account pursuant to arrangements satisfactory to the Administrative Agent (the “LC Collateral Account”) at the Payment Office, in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the Lenders and in which the Borrower shall have no interest other than as set forth in Section 8.2. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the Issuing Bank, a Lien in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the LC Collateral Account to secure the prompt and complete payment and performance of the Obligations. The Administrative Agent will invest any funds on deposit from time to time in the LC Collateral Account in certificates of deposit of SunTrust Bank having a maturity not exceeding 30 days. The LC Collateral Account shall be administered in accordance with Section 2.22(g) hereof. If, after the date that the Borrower Cash Collateralizes its reimbursement obligations pursuant to this Section, (x) first, to the outstanding principal installments Revolving Credit Exposure of all Lenders is less than the lesser of the Term Loan (i) Aggregate Revolving Commitment and (ii) the Borrowing Base, in the inverse order each case, then in effect, for a period of the maturities thereofat least ten (10) consecutive Business Days, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuingthen exists, such repayments the funds in the LC Collateral Account shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with released by the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Administrative Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentBorrower.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Encore Capital Group Inc), Amended and Restated Credit Agreement (Encore Capital Group Inc)
Mandatory Prepayments. (a) When Subject to clauses (b) and (c) below, on each occasion that the Company or any Borrower sells or otherwise disposes Subsidiary receives any Net Cash Proceeds in respect of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in Prepayment Event, the aggregate Company shall promptly (and in any fiscal yearevent within five Business Days) apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans, other than Inventory in it being agreed that to the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1extent no Term Loans are then outstanding at such time, to the extent any Revolving Loans are outstanding on such date, the Borrowers shall repay the Advances in an amount equal to the prepay Revolving Loans with such Net Disposition Cash Proceeds on such date). Each prepayment of such sale, such repayments outstanding Loans required to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds pursuant to this paragraph shall be held allocated pro rata between the Term Loans (including the Other Term Loans (if any)) or if applicable, Revolving Loans and, in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be case of Term Loans, applied (x) first, to against the outstanding remaining scheduled installments of principal installments due in respect of the Term Loan Loans, including (unless otherwise specified in the inverse order of applicable Incremental Assumption Agreement) the maturities thereof, and Other Term Loans (yif any) second, to as directed by the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofCompany.
(b) Notwithstanding clause (a) above, if (x) the foregoing, with respect Company shall deliver a certificate of an Executive Officer to the Administrative Agent at or promptly following the time of receipt of any Net Disposition Proceeds which amount that would otherwise give rise constitute Net Cash Proceeds of an Asset Sale setting forth the Company’s intent to a prepayment under Section 2.20(a), so long as reinvest such proceeds in productive assets or businesses within 365 days of receipt of such proceeds (the “Investment Period”) and (y) no Event of Default shall have occurred and shall be continuing and at the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt time of the delivery of such certificate, such proceeds shall not constitute Net Disposition Cash Proceeds except to the extent not so used at the end of such Investment Period (or, if the Company commits to reinvest such proceeds within such Investment Period, within 180 days of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion end of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their SubsidiariesInvestment Period), then at which time such Net Disposition Proceeds proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentNet Cash Proceeds.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent Company shall not be deemed a waiver of required to prepay by any rights Agent or Lenders may have as a result of the failure by Borrowers amount that would otherwise be required pursuant to deliver such financial statements.
clause (da) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, above to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers extent (i) contemplated the relevant Net Cash Proceeds are generated by Section 6.5(d)any Foreign Subsidiary and the repatriation to the Company of any such Net Cash Proceeds would be prohibited, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year restricted or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice delayed under any applicable law or conflict with the fiduciary duties of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default Foreign Subsidiary’s directors or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, officers or (ii) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation of such Net Cash Proceeds to the Company would result in adverse tax consequences as a result of any taking or condemnation of any assets or property reasonably determined by the Company; provided that upon the Company obtaining knowledge that such circumstance in clause (i) and/or clause (ii), as applicable, ceases to apply, such Net Cash Proceeds shall be applied in accordance with Section 6.6deemed received for purposes of clause (a) above and any prepayment or reduction requirements applicable thereto.
Appears in 2 contracts
Sources: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Mandatory Prepayments. (a) When The Borrower shall prepay the Loans with the Net Cash Proceeds of Asset Sales to the extent required by subsections 6.6(c) and (d).
(b) If at any time the Borrower sells shall make a voluntary prepayment of loans under the Other Vendor Credit Facility or otherwise disposes shall voluntarily make a prepayment of any Collateral resulting term loans, or a Permanent Reduction, under the Existing Bank Credit Facility and such prepayment or Permanent Reduction is not made in Net Disposition Proceeds in excess connection with a Permitted Refinancing, the Borrower shall, subject to the provisions of $500,000 in subsection 2.16, prepay the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Loans in an amount equal to the Net Disposition Proceeds product of such sale, such repayments to be made promptly but in no event more than three (3i) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the then outstanding principal installments amount of the Term Loan in Loans multiplied by (ii) a fraction (A) the inverse order numerator of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and which is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds loans so voluntarily prepaid under the Other Vendor Credit Facility or the Existing Bank Credit Facility or the amount of the Permanent Reduction, as the case may be, and (B) the denominator of which is the aggregate then outstanding principal amount of loans under the Other Vendor Credit Facility or such portion thereofthe Existing Bank Credit Facility (in the case of prepayment of term loans) to pay or the actual cost aggregate amount of reinvestment and revolving credit commitments under the reserve with respect to such amount shall be released and shall be available to Borrowers Existing Bank Credit Facility (in the case of a Permanent Reduction), as a Revolving Advancethe case may be, so long as (i) Borrowers have sufficient Undrawn Availability (after in any case, before giving effect to the release any such voluntary prepayment of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 loans or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentPermanent Reduction.
(c) Borrowers shall prepay the outstanding amount Partial prepayments of the Term Loans in an amount equal pursuant to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount this subsection shall be applied to the outstanding principal then remaining installments of principal thereof pro rata according to the Term Loan in the inverse order of the maturities respective amounts thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Each such prepayment shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of together with any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than amounts payable pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used subsection 2.14 and accrued interest to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if date on the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interestsamount prepaid. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy Amounts prepaid on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall the Loans may not be applied in accordance with Section 6.6reborrowed.
Appears in 2 contracts
Sources: Credit Agreement (Sprint Spectrum L P), Credit Agreement (Sprint Spectrum L P)
Mandatory Prepayments. (ai) When any Borrower sells No later than the second Business Day following the receipt of Net Proceeds in respect of Extraordinary Receipts in excess of $500,000 in the aggregate for all such Extraordinary Receipts during the term of this Agreement, the Borrowers shall apply an amount equal to 100% of the Net Proceeds received with respect thereto to prepay outstanding Term Loans; provided that no such prepayment shall be required under this clause (i) if the Net Proceeds received are applied, reinvested or otherwise disposes used pursuant to and as contemplated by the Approved Budget (including pursuant to an Approved Budget for a future period).
(ii) No later than the second Business Day following the receipt of Net Proceeds in respect of any Collateral resulting in Prepayment Asset Sale or Net Disposition Insurance/Condemnation Proceeds in excess of $500,000 in the aggregate in for all such proceeds during the term of this Agreement, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto to prepay outstanding Term Loans; provided that no such prepayment shall be required under this clause (ii) if the Net Proceeds received are applied, reinvested or otherwise used pursuant to and as contemplated by the Approved Budget (including pursuant to an Approved Budget for a future period).
(iii) If Holdings or any fiscal year, Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Inventory in the Ordinary Course of Business or Dispositions otherwise Indebtedness permitted under Section 7.16.01) or any Capital Stock (other than issuances of Capital Stock of any Subsidiary of the Borrower Agent to any other Subsidiary of the Borrower Agent, or to the Borrower Agent), the Borrowers shall repay apply an amount equal to 100% of all Net Proceeds received therefrom on or prior to the Advances date that is two (2) Business Days after the receipt thereof.
(iv) Notwithstanding any provision under this Section 2.11(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.11(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Prepayment Asset Sale is consummated by a Foreign Subsidiary or such Net Insurance/Condemnation Proceeds or Extraordinary Receipts are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the Borrower Agent hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds or Net Insurance/Condemnation Proceeds is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds or Net Insurance/Condemnation Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent provided herein; and (B) if the Borrowers or the Subsidiaries determine in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in materially adverse Tax consequences, taking into account any foreign tax credit or benefit expected to be realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the Borrower Agent, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such materially adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.11(b), the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrower Agent rather than such Foreign Subsidiary, less the amount of additional Taxes that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds or Net Insurance/Condemnation Proceeds from such Foreign Subsidiary would no longer have a materially adverse Tax consequence, an amount equal to the Net Disposition Proceeds or Net Insurance/Condemnation Proceeds, as applicable, not previously applied pursuant to this immediately preceding clause, shall be promptly applied to the repayment of such salethe Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv)).
(v) Notwithstanding any of the other provisions of this Section 2.11, such repayments the Required Lenders may elect to waive any mandatory prepayment of Term Loans required to be made promptly but in no event more than three pursuant to clauses (3i) Business Days following receipt and (ii) of such net proceeds, this Section 2.11(b) by providing written notice to the Administrative Agent and until the date of payment, such proceeds Borrower Agent.
(vi) All prepayments under this Section 2.11(b) shall be held accompanied by all accrued and unpaid interest on the amount prepaid and, in trust for Agentthe case of a prepayment of a SOFR Term Loan only, any additional amounts required pursuant to Section 2.16. The foregoing shall not be deemed In addition, each prepayment of Term Loans pursuant to be implied consent to any such sale otherwise prohibited by the terms Section 2.10 and conditions hereof. Such repayments 2.11 shall be applied (x) firstby Administrative Agent, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Section 2.18(b) unless prior to such prepayment the Administrative Agent receives a certification from the Required Lenders that the one or more of the Orders specifies otherwise, which certification includes a direction from the Required Lenders as to how the Administrative Agent should apply such prepayment.
(vii) Notwithstanding any of the other provisions of this Section 3.2(b)2.11, provided however each Lender may elect not to accept all (but not less than all) of its pro rata percentage of any mandatory prepayment (any such Lender, a “Declining Lender”, and any such declined amounts, the “Declined Amounts”) of Term Loans required to be made pursuant to clauses (i) and (ii) of this Section 2.11(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent no later than 5:00 p.m., New York City time, on the Business Day of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Amounts shall be offered to Lenders that if no Default or Event of Default has occurred are not Declining Lenders on a pro rata basis, and is continuing, such repayments any Declined Amounts remaining thereafter shall be applied to cash collateralize any Obligations related prepay other Indebtedness to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the extent required by the terms hereofthereof as determined by the Borrower Agent and, after giving effect thereto, any remaining amounts may be retained by the Borrower.
(bviii) Notwithstanding The Borrower Agent shall deliver to the foregoingAdministrative Agent, with respect to any Net Disposition Proceeds which would otherwise give rise to a at the time of each prepayment required under this Section 2.20(a2.11(b), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds a certificate signed by a Responsible Officer of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion Borrower Agent setting forth in reasonable detail the calculation of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi)prepayment. Borrowers may request Revolving Advances in Each such certificate shall specify the principal amount of the Net Disposition Proceeds each Borrowing (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount be prepaid. Prepayments shall be released and accompanied by accrued interest on the amount to prepaid. All prepayments of Borrowings under this Section 2.11(b) shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent Section 2.12 and Section 2.16, but shall not otherwise be deemed a waiver of any rights Agent without premium or Lenders may have as a result of the failure by Borrowers to deliver such financial statementspenalty.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Party City Holdco Inc.), Restructuring Support Agreement (Party City Holdco Inc.)
Mandatory Prepayments. (ai) When If, after giving effect to any termination or reduction of the Commitments pursuant to Section 2.06(b), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower sells shall (A) prepay the Borrowings on the date of such termination or otherwise disposes reduction in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of any Collateral resulting in Net Disposition Proceeds in excess the Borrowings as a result of $500,000 in an LC Exposure, pay to the aggregate in any fiscal year, other than Inventory in Administrative Agent on behalf of the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.07(j).
(ii) The Borrower shall prepay the outstanding principal amount of Loans in amounts equal to (A) one hundred percent (100%) of the aggregate Net Proceeds from any Asset Disposition (other than any Asset Disposition by a DevCo) or (B) the DevCo Ownership Percentage with respect to such DevCo of the aggregate Net Proceeds from any Asset Disposition by a DevCo. Such prepayments shall be made within one (1) Business Day after the date of receipt of the Net Disposition Proceeds of any such sale, Asset Disposition by such repayments to be made promptly but in no event more than Credit Party and within three (3) Business Days following receipt of such net proceeds, and until after the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to receipt of the Net Proceeds of any such sale otherwise prohibited Asset Disposition by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), such DevCo; provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments of aggregate Net Proceeds from Asset Dispositions shall be applied required hereunder to cash collateralize the extent such Net Proceeds are used to acquire other assets useful in the ordinary course of the business of the Credit Parties or such DevCo, as applicable, within three hundred sixty (360) days after receipt of such Net Proceeds by the Credit Parties or such DevCo, as applicable, or such longer period of time as may be agreed to by Majority Lenders; provided, however, that any Obligations related to outstanding Letters portion of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances the Net Proceeds not actually reinvested within the applicable time period shall be prepaid in accordance with the terms hereof.
(b) this Section 3.04(c). Notwithstanding the foregoing, with respect there shall be no reinvestment period for any Asset Disposition of the Equity Interests in any DevCo.
(iii) Promptly following the issuance of any Debt by any Credit Party (other than Debt permitted by Section 9.02 or otherwise consented to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(aby Majority Lenders), so long as no Event of Default the Borrower shall have occurred and be continuing and prepay the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds Loans in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve an aggregate amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount one hundred percent (100%) of the Net Disposition Proceeds (or received in respect of such portion thereof) Debt. Nothing in this paragraph is intended to pay the actual cost permit any Credit Party to incur Debt other than as permitted under Section 9.02, and any such incurrence of reinvestment and the reserve with respect to such amount Debt in violation of Section 9.02 shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) breach of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(civ) Borrowers The Borrower shall prepay the outstanding principal amount of the Term Loans in an amount equal to twenty-five (A) one hundred percent (25100%) of Excess Cash Flow for each fiscal year beginning the aggregate Net Proceeds from any Insurance and Condemnation Event received by any Credit Party and (B) the DevCo Ownership Percentage with the fiscal year ending December 31, 2022, payable upon delivery respect to such DevCo of the financial statements to Agent referred to in aggregate Net Proceeds from any Insurance and required Condemnation Event received by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofDevCo. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such prepayments shall be made by Agent upon which calculation Borrowers shall make within one (1) Business Day after the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver date of receipt of Net Proceeds of any rights Agent or Lenders may have as a result of the failure such Insurance and Condemnation Event by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than Credit Party and within three (3) Business Days after the date of receipt by Borrowers of the cash proceeds from Net Proceeds of any such issuance or incurrence of IndebtednessInsurance and Condemnation Event by such DevCo; provided that, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, no prepayments of Net Proceeds from Insurance and Condemnation Events shall be required hereunder to the extent such repayments Net Proceeds are used to acquire other assets useful in the ordinary course of the business of the Credit Parties or such DevCo, as applicable, within three hundred sixty (360) days after receipt of such Net Proceeds by the Credit Parties or such DevCo, as applicable, or such longer period of time as may be agreed to by Majority Lenders; provided, however, that any portion of the Net Proceeds not actually reinvested within the applicable time period shall be prepaid in accordance with this Section 3.04(c).
(v) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto.
(vi) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied ratably to cash collateralize any Obligations related the Loans included in the prepaid Borrowings. Prepayments pursuant to outstanding Letters of Credit lastthis Section 3.04(c) in such order as Agent may determine subject shall be accompanied by accrued interest to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofextent required by Section 3.02.
(evii) Other than pursuant If any prepayment is required to any issuance of Equity Interests of Borrowers (ibe made under Section 3.04(c)(ii)(B) contemplated by or Section 6.5(d3.04(c)(iv)(B), (ii) used the Borrower shall cause the applicable DevCo to fund Capital Expenditures make a cash dividend to a Credit Party in an amount not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice less than the amount of such issuance of Equity Interests, and Agent in its sole discretion, required prepayment within such ten three (103) day period, may request an appraisal of Equipment and Real Property Business Days after the applicable DevCo receives the Net Proceeds required to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepaid.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Oasis Midstream Partners LP), Credit Agreement (Oasis Midstream Partners LP)
Mandatory Prepayments. (ai) When any Borrower sells Parent Holdco or otherwise disposes of any Collateral resulting in Net Subsidiary thereof makes any Asset Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, (other than Inventory in the Ordinary Course of Business or Dispositions otherwise dispositions permitted under Section 7.1Sections 4.3(a), 4.3(d), 4.3(e), 4.3(f), 4.3(h) or 4.3(i)) or experiences any Asset Loss Event, U.S. Borrowers shall repay the Advances in an amount equal to 100% of the Net Disposition Cash Proceeds of such salethereof, such repayments to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsNet Cash Proceeds, and until the date of payment, such proceeds Net Cash Proceeds shall be held in trust for Agent; provided, however, up to an aggregate of $1,000,000 per Fiscal Year (or such higher amount as Agent and the Required Lenders may agree) of the Net Cash Proceeds of the foregoing shall not be required to be applied to the prepayment of the Advances to the extent such proceeds are to be used to replace, repair or restore, or otherwise reinvest in, assets used in any Borrower’s business and so long as: (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) U.S. Borrowing Agent delivers a certificate to Agent within three (3) Business Days after such Asset Disposition or ten (10) Business Days after the occurrence of Asset Loss Event (as applicable), stating that such Net Cash Proceeds shall be used to replace, repair or restore, or otherwise reinvest in, any such properties or assets to be used in Borrowers’ or its Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 270 days after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended and shall set forth in reasonable detail the plans for such reinvestment, replacement, repair or restoration, which shall be acceptable to Agent in its Permitted Discretion) and (C) such Net Cash Proceeds are deposited in a non-interest bearing account subject to the sole dominion and control of Agent (which proceeds shall then be disbursed by Agent to the applicable U.S. Borrower or Subsidiary thereof promptly upon U.S. Borrowing Agent’s written request therefor setting forth in reasonable detail the use of such proceeds and certifying that such proceeds are being applied in the manner set forth in the certificate delivered to Agent in accordance with clause (B)); provided, further, that (x) if all or any portion of such Net Cash Proceeds not so applied to the prepayment of the Advances are not used in accordance with the foregoing proviso within 270 of receipt of such Net Cash Proceeds, such amount shall be applied to the Advances as otherwise set forth herein, on the last day of such specified period, (y) if such U.S. Borrower or Subsidiary, as the case may be, is not permitted to reinvest or utilize such Net Cash Proceeds in accordance with this Section 2.21(c)(i) as a result of the existence of a Default, U.S. Borrowing Agent may request, and upon the written approval of Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to the sole dominion and control of Agent until the earlier of (I) the date on which such Default is cured or waived in writing in accordance with the terms of this Agreement, in which case such amounts may be reinvested or utilized in accordance with the proviso above and (II) the date on which an Event of Default shall occur, in which case such Net Cash Proceeds shall be applied to the Advances in accordance with Section 11.5 on such date and (z) if such U.S. Borrower or such Subsidiary, as the case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of a continuing Event of Default, such net cash proceeds shall be applied in accordance with Section 11.5. The foregoing shall not be deemed to be implied consent to any such sale Disposition or other event otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xi) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (yii) second, (A) to the extent such Asset Loss Event related to the U.S. Borrowers, to the remaining U.S. Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to the U.S. Borrowers’ ability to re-borrow reborrow U.S. Revolving Advances in accordance with the terms hereof and (B) to the extent such Asset Loss Event related to the Canadian Borrowers, to the remaining Canadian Advances in such order as Agent may determine, subject to the Canadian Borrowers’ ability to reborrow Canadian Revolving Advances in accordance with the terms hereof.
(bii) Notwithstanding [Reserved].
(iii) [Reserved].
(iv) When any Parent Holdco or any Subsidiary thereof receives any Extraordinary Receipts, U.S. Borrowers shall repay the foregoingAdvances in an amount equal to 100% of the Net Cash Proceeds thereof, with respect such repayment to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as be made promptly but in no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two event more than five (25) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Cash Proceeds. Such repayments shall be applied by Agent first, to the extent any such amounts constitute reimbursement of amounts previously paid using proceeds of Revolving Advances and Agent shall implement a reserve equal or working capital, to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request outstanding Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as without a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect corresponding reduction to the release Maximum Revolving Advance Amount) and second, to the extent of any remaining Net Cash Proceeds thereof, 75% to the reserve for such amount) to cause such outstanding Revolving Advances (without a corresponding reduction to be made, (iithe Maximum Revolving Advance Amount) all conditions and 25% to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestmentTerm Loan. The foregoing shall not be deemed to be implied consent to any Disposition event or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating condition giving rise to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Extraordinary Receipts which would otherwise constitute a Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofunder this Agreement.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Mandatory Prepayments. (a) When Immediately upon receipt by the Borrower or any Borrower sells or otherwise disposes of its Domestic Subsidiaries of Net Cash Proceeds of any Collateral resulting in Net Disposition Proceeds Asset Sale or Recovery Event in excess of (i) $500,000 in the aggregate 1,000,000, with respect to any individual Asset Sale or Recovery Event (or series of related Asset Sales or Recovery Events), or (ii) $2,500,000 in any fiscal yearFiscal Year with respect to all such Asset Sales or Recovery Events, other than Inventory respectively, the Borrower shall prepay the Obligations in the Ordinary Course of Business or Dispositions otherwise permitted under accordance with Section 7.1, Borrowers shall repay the Advances 2.12(d) in an amount equal to such Net Cash Proceeds, in each case, to the extent such Net Disposition Cash Proceeds of such sale, such repayments are not reinvested or committed to be made promptly but reinvested in no event more than three assets (3excluding current assets as classified in accordance with GAAP) Business Days following receipt within one hundred eighty (180) days of such net proceeds, and until the date of paymentsuch Asset Sale or Recovery Event and, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed if committed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied reinvested, actually reinvested in assets (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit excluding current assets as classified in accordance with GAAP) within one hundred eighty (180) days after the provisions date of Section 3.2(b), provided however such commitment (it being understood that if no Default or Event of Default has occurred and is continuing, such repayments prepayment shall be applied to cash collateralize any Obligations related to outstanding Letters due immediately upon the expiration of Credit lastthe applicable period of one hundred eighty (180) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofdays).
(b) Notwithstanding Immediately upon the foregoing, with respect to receipt by the Borrower or any of its Subsidiaries of Net Disposition Cash Proceeds which would otherwise give rise to a prepayment of any issuance of Indebtedness (other than Indebtedness permitted under Section 2.20(a7.1), so long as no Event of Default the Borrower shall have occurred and be continuing and prepay the Borrowing Agent shall have notified Agent within two (2Obligations in accordance with Section 2.12(d) Business Days following receipt of in an amount equal to such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentCash Proceeds.
(c) Borrowers Immediately upon the receipt by the Borrower of Net Cash Proceeds from any Specified Equity Contribution, the Borrower shall prepay the outstanding Obligations in accordance with Section 2.12(d) in an amount equal to such Net Cash Proceeds.
(d) Any prepayments made by the Borrower pursuant to Sections 2.12(a), (b) or (c) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Banks then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Banks based on their respective Pro Rata Shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective Pro Rata Shares of such interest and fees; fourth, to the principal balance of the Term Loans (on a pro rata basis) until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares thereof and applied first, to the next four (4) installments thereof and then, to the remaining principal installments thereof on a pro rata basis until paid in full; fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments and seventh, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth through seventh above.
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by unpaid interest on such excess amount and any amounts due under Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount 2.19. Each prepayment shall be applied first to the outstanding principal installments of Swingline Loans to the Term Loan in full extent thereof, second to the inverse order of Base Rate Loans and LIBOR Index Rate Loans to the maturities full extent thereof, and finally to Eurodollar Loans to the full extent thereof. In If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the event that Revolving Credit Exposure of all Lenders exceeds the financial statements are not so deliveredAggregate Revolving Commitments, then a calculation based upon estimated amounts the Borrower shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject Cash Collateralize its reimbursement obligations with respect to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver all Letters of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof excess plus any accrued and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofunpaid fees thereon.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Cross Country Healthcare Inc), Credit Agreement (Cross Country Healthcare Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes [Reserved].
(b) Subject to paragraph (f) below, following the consummation of any Collateral resulting in Net Disposition Proceeds in excess Asset Sale by the Company or any of $500,000 its Subsidiaries, in the aggregate case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any fiscal yearnon-cash consideration obtained in connection with such Asset Sale, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to 100% of the Net Disposition Proceeds of such sale, such repayments to Asset Sale shall be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until applied by the Company on the date of paymentreceipt thereof to the prepayment of the Loans. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and shall be continuing at the time of such Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall be held not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in trust for Agent. The foregoing productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall not be deemed to be implied consent Net Proceeds to any be applied as set forth in this Section) to be used for such sale otherwise prohibited by the terms and conditions hereof. Such repayments purposes, at which time all such proceeds shall be applied deemed to be Net Proceeds; provided, that proceeds received from Asset Sales of any Qualified Domestic Assets shall be deemed to have been “reinvested” for purposes of this Section 5.6(b) only to the extent that such proceeds are reinvested (xi) pursuant to, and subject to the limitations set forth in, Section 9.7(b)(ii) hereof, or (ii) in assets which will constitute Qualified Domestic Assets, subject only to the perfection of the Liens of the Collateral Agent as required in clause (ii) of the definition thereof.
(c) Each prepayment of Loans pursuant to clause (b) above shall be applied: first, to the outstanding next four quarterly principal repayment installments of and then to the remaining principal repayment installments, in each case ratably to each Incremental Term Loan in Tranche (if any) and to the inverse order of the maturities principal repayment installments thereof, and (y) second, to the remaining Advances Revolving Credit Facility in the manner set forth in paragraph (including cash collateralization d) below.
(d) Payments in respect of the Revolving Credit Facility pursuant to this Section 5.6, first, shall be applied ratably (i) to reimburse the Issuing Lenders for all Obligations relating unreimbursed L/C Disbursements for which the Issuing Lenders have not received payment from the Revolving Credit Lenders pursuant to any the third sentence of Section 2.6(b), (ii) to reimburse those Revolving Credit Lenders which, pursuant to the fourth sentence of Section 2.6(b), have previously made payments to an Issuing Lender pursuant to the third sentence of Section 2.6(b) and (iii) to repay Swing Line Loans which are not Refunded Swing Line Loans, second, shall be applied ratably to repay outstanding Revolving Credit Loans, and third, shall be used to Cash Collateralize all undrawn Letters of Credit then outstanding. Any amount remaining following the application required by the preceding sentence in full may be retained by the Company for use in the ordinary course of business, and the Revolving Credit Facility shall be automatically and permanently reduced dollar for dollar by the amount so retained.
(e) [Reserved].
(f) Upon receipt by the Company or any of its Subsidiaries of the amounts required to be paid pursuant to paragraph (b) above from any Asset Sale consisting of the sale of shares of capital stock of any Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries of such amounts as are permitted to be retained in accordance with the provisions paragraph (b) of this Section 3.2(b5.6), provided however (i) the Administrative Agent shall release to the Company, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary held by it as Pledged Stock (as defined in the Pledge Agreement) and (ii) the Agents and the Lenders will, upon the request of the Company, execute and deliver any instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such release.
(g) In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to such excess.
(h) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as specified in Section 5.5 of each prepayment pursuant to Section 5.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this Section 5.6, if not on the last day of the Interest Period with respect thereto, shall, at the Company’s option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the provisions of Section 5.21 or such repayments prepayment (after application to any ABR Loans, in the case of prepayments by the Company) shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance deposited with the Collateral Agent as cash collateral for such Eurodollar Loans on terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful reasonably satisfactory to the business of the Loan Parties Collateral Agent and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount thereafter shall be applied to the outstanding principal installments prepayment of the Term Loan in Eurodollar Loans on the inverse order last day of the maturities thereofrespective Interest Periods for such Eurodollar Loans next ending most closely to the date of receipt of such Net Proceeds as contemplated by paragraph (b) above. In the event that the financial statements are not so deliveredAfter such application, then a calculation based upon estimated amounts any remaining interest earned on such cash collateral shall be made by Agent upon which calculation Borrowers shall make paid to the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsCompany.
(di) In Upon the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers Revolving Credit Termination Date the Company shall, no later than three (3) Business Days after the receipt by Borrowers with respect to each then outstanding Letter of the cash proceeds from any such issuance or incurrence of IndebtednessCredit, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstif any, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers either (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of cause such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, to be cancelled without such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters Letter of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, being drawn upon or (ii) as Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a result letter of any taking credit issued by banks or condemnation of any assets or property shall be applied in accordance with Section 6.6a bank satisfactory to the Administrative Agent on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. Notwithstanding the provisions of Section 6.4 hereof, and subject to the terms of Section 7.b. of the Term B Loan Intercreditor Agreement:
(a) When Upon the receipt by any Borrower sells or otherwise disposes any of its Subsidiaries of any Collateral resulting in Net Disposition Proceeds Extraordinary Receipts in excess of $500,000 250,000 in the aggregate in any fiscal year:
(i) if such Extraordinary Receipts are the proceeds of any Canadian Pension Plan, other than Inventory then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to fifty (50%) percent of such Extraordinary Receipts (net of any reasonable expenses incurred in collecting such Extraordinary Receipts) as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Loans so long as (in the Ordinary Course case of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances this clause (B) only) Agent establishes and maintains a permanent Reserve in an amount equal to the Net Disposition Proceeds amount of such saleproceeds that are so applied by the prepayment of the Revolving Loans;
(ii) if such Extraordinary Receipts are the proceeds of Inventory or Accounts, such repayments then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to be made promptly but in no event more than three one hundred (3100%) Business Days following receipt percent of such Extraordinary Receipts (net proceeds, and until the date of payment, any reasonable expenses incurred in collecting such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xExtraordinary Receipts) as follows: first, to the outstanding principal installments amount of the Term Loan Revolving Loans until paid in the inverse order of the maturities thereoffull, and (y) second, to the remaining Advances outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(including cash collateralization iii) if such Extraordinary Receipts are the proceeds of all Obligations relating to any outstanding Letters Collateral (other than Inventory or Accounts or the proceeds of Credit in accordance with the provisions of Section 3.2(bany Canadian Pension Plan), provided however then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to one hundred (100%) percent of such Extraordinary Receipts (net of any reasonable expenses incurred in collecting such Extraordinary Receipts) as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (B) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Extraordinary Receipts that if are so applied to the prepayment of the Revolving Loans; provided, however, that (A) so long as no Default or Event of Default has occurred and is continuing, on the date any Borrower or any of its Subsidiaries receives Extraordinary Receipts consisting of insurance proceeds from one or more policies covering, or proceeds from any judgment, settlement, condemnation or other cause of action in respect of, the loss, damage, taking or theft of any property or assets, such repayments shall Extraordinary Receipts may, at the option of the Borrowers, be applied to cash collateralize repair, refurbish or replace such property or assets or acquire replacement property or assets for the property or assets so lost, damaged or stolen or other property or assets used or useful in the business of any Obligations related Borrower for the property or assets so disposed, provided, that (w) Agent has a first priority Lien on such replacement (or repaired or restored) property or assets, (y) (I) such insurance proceeds are delivered to outstanding Letters of Credit last) Agent to hold in such order as Agent may determine, subject escrow until required to Borrowers’ ability to re-borrow Revolving Advances be used in accordance with this Agreement or (II) Agent establishes a Reserve in the terms hereof.
amount of such insurance proceeds until such time as such proceeds are applied to repair, refurbish or replace such property or assets or acquire replacement property or assets for the property or assets so lost, damaged or stolen or other property or assets used or useful in the business of any Borrower for the property or assets so disposed, (by) Notwithstanding the foregoing, with respect Borrowers deliver to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following 10 days after the date of receipt of such Net Disposition Proceeds Extraordinary Receipts a certificate stating that such Extraordinary Receipts shall be used to repair or refurbish such property or assets or to acquire such replacement property or assets for the property or assets so lost, damaged or stolen or such other property or assets used or useful in the business of any Borrower within one (1) year after the date of receipt of such Extraordinary Receipts (which certificate shall set forth an estimate of the applicable Loan Party’s Extraordinary Receipts to be so expended), and (z) if such Extraordinary Receipts are the proceeds of Real Property and aggregate $1,000,000 or its Subsidiary’s election to reinvest more, Borrowers shall obtain the prior written consent of Agent, and if all or any portion of such Net Disposition Proceeds Extraordinary Receipts described in fixed or capital assets or other assets useful to this clause (A) are not so used within one (1) year after the business date of the Loan Parties and their Subsidiariesreceipt of such Extraordinary Receipts, then such Net Disposition Proceeds unused Extraordinary Receipts shall be applied to prepay the Obligations and the Term B Loan Debt in accordance with this Section 2.4(a), (B) pending any such reinvestment described in clause (A) above, the Extraordinary Receipts shall be applied as a prepayment of Revolving Loans. Any Extraordinary Receipts applied to repair, refurbish or replace Collateral pursuant to and in accordance with this Section 2.4(a) shall not be deemed Capital Expenditures for purposes of this Agreement.
(b) Upon the issuance or sale by Agent any Borrower or any of its Subsidiaries of Capital Stock of such Borrower or Subsidiary as permitted in Sections 9.7(b)(iii) and (iv) hereof, or the issuance or incurrence by any Borrower or any of its Subsidiaries of any Indebtedness of the type described in Section 9.9(e) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to one hundred (100%) percent of the Net Cash Proceeds received by such Borrower or Subsidiary in connection therewith as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Advances Loans so long as (in the case of this clause (B) only) Agent establishes and Agent shall implement maintains a reserve permanent Reserve in an amount equal to the amount of such Net Disposition Cash Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, that are so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect applied to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds prepayment of the Revolving Advances to pay the cost of such cost of reinvestmentLoans. The foregoing provisions of this subsection (b) shall not be deemed to be implied consent to any Disposition such issuance, incurrence or other transaction sale otherwise prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(ci) Upon the sale or other disposition of any Collateral by any Borrower or any of its Subsidiaries as permitted in Sections 9.7(b)(ii), (vi), (vii) or (x) hereof, or the sale or other disposition of any Collateral by any Borrower or any of its Subsidiaries not otherwise permitted by the terms of this Agreement but consented to by the Required Lenders, Borrowers shall immediately prepay the outstanding amount of Obligations and the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term B Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Debt in an amount equal to one hundred percent (100.00100%) percent of the Net Cash Proceeds received by such cash proceeds Borrower or such Subsidiary in connection with such sale or other disposition as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the case portion of the Net Cash Proceeds attributable to such incurrence Inventory or issuance of Indebtedness. Such repayments will Accounts shall be applied (x) applied, first, to the outstanding principal installments amount of the Term Loan Revolving Loans until paid in the inverse order of the maturities thereof and (y) full, second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance principal amount of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment Loans until paid in full, and Real Propertythird, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance principal amount of the Term LoanB Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then one hundred percent (100.00%) the portion of the Net Cash Proceeds attributable to such net cash proceeds received from the issuance of Equity Interests other Collateral shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amountapplied, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(ii) Upon the sale or other disposition of the Capital Stock, assets or properties of an Exempt Subsidiary as permitted in Section 9.7(b)(ix) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to the lesser of (x) one hundred (100%) percent of the Net Cash Proceeds received by the applicable Borrower, Guarantor or Subsidiary in connection with such sale or other disposition or (y) the amount equal to four (4) times TTM EBITDA of such Exempt Subsidiary for the period of twelve (12) consecutive fiscal months ended on the last day of the month immediately preceding the date of such sale or other disposition for which Agent has received financial statements of Parent and its Subsidiaries as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the portion of the Net Cash Proceeds from such sale or other disposition attributable to such Inventory or Accounts shall be applied, first, to the outstanding principal amount of the Revolving Loans until paid in full, second, to the outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then the portion of the Net Cash Proceeds attributable to such other Collateral shall be applied, first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(iii) Upon the sale or other disposition of the Capital Stock of Indiana Tube Denmark as permitted in Section 9.7(b)(v) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to fifty (50%) percent of the Net Cash Proceeds received by H&H International in connection with such sale or other disposition as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the portion of the Net Cash Proceeds from such sale or other disposition attributable to such Inventory or Accounts shall be applied, first, to the outstanding principal amount of the Revolving Loans until paid in full, second, to the outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then the portion of the Net Cash Proceeds attributable to such other Collateral shall be applied, first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(iv) The provisions of this subsection (c) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(d) All prepayments of the Term Loans under this Section 2.4 shall be applied against the remaining installments (if any) of principal due on the Term Loans in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal maturity. Notwithstanding anything to the Term Loan Collateral Amount contrary in this Section 2.4, all prepayments of principal under this Section 2.4 shall be made together with accrued and (y) second, unpaid interest thereon to the remaining Advances (including cash collateralization date of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Mandatory Prepayments. (i) If, after giving effect to any termination or reduction of the Aggregate Maximum Credit Amounts pursuant to Section 2.06(b), or any reduction of the Aggregate Elected Commitment Amounts pursuant to Section 2.06(c), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower shall (a) When prepay the Borrowings on the date of such termination or reduction in an aggregate principal amount equal to such excess, and (b) if any Borrower sells or otherwise disposes excess remains after prepaying all of any Collateral resulting in Net Disposition Proceeds in excess the Borrowings as a result of $500,000 in an LC Exposure, pay to the aggregate in any fiscal year, other than Inventory in Administrative Agent on behalf of the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in Lenders an amount equal to the Net Disposition Proceeds of such sale, such repayments excess to be made promptly but held as cash collateral as provided in no event more than three Section 2.08(j).
(3ii) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to Upon any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments Scheduled Redetermination of the Term Loan in the inverse order Borrowing Base or Interim Redetermination of the maturities thereofBorrowing Base, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in each case in accordance with the provisions of Section 3.2(b2.07(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal adjustment to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Borrowing Base in accordance with the provisions of Section 3.2(b8.13(c), provided however that if no Default the total Revolving Credit Exposures exceeds the redetermined or Event of Default has occurred and is continuingadjusted Borrowing Base, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with then the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d)Borrower shall, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice Business Days after its receipt of a New Borrowing Base Notice indicating such Borrowing Base Deficiency, inform the Administrative Agent of the Borrower’s election to: (A) within thirty (30) days following such election, prepay the Loans in an aggregate principal amount equal to such excess, (B) prepay the Loans in six equal monthly installments, commencing on the thirtieth (30th) day following receipt of the New Borrowing Base Notice indicating such Borrowing Base Deficiency with each payment being equal to 1/6th of the aggregate principal amount of such issuance excess and due and payable on the same day in each of Equity Intereststhe five subsequent calendar months, (C) within thirty (30) days following such election, mortgage additional Oil and Gas Properties not evaluated in the most recently delivered Reserve Report acceptable to the Administrative Agent in its sole discretion (together with title information with respect thereto acceptable to the Administrative Agent in its sole discretion) having a Borrowing Base Value sufficient, after giving effect to any other actions taken pursuant to this Section 3.04(c), to eliminate such excess, or (D) undertake a combination of any of clauses (A), (B) and (C); provided that if, because of LC Exposure, a Borrowing Base Deficiency remains after prepaying all of the Loans, the Borrower shall cash collateralize such remaining Borrowing Base Deficiency as provided in Section 2.08(j); provided further, that all payments required to be made pursuant to this clause (ii) must be made on or prior to the Termination Date. Notwithstanding the foregoing, if the Borrower does not inform the Administrative Agent of its election within such ten (10) day Business Day period, may request the Borrower shall be deemed to have delivered an appraisal of Equipment and Real Property to determine if election notice proposing the then outstanding balance action set forth in clause (B) above as of the Term Loan exceeds the Term Loan Collateral Amount at the time last day of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent ten (100.00%10) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofBusiness Day period.
(fiii) All proceeds received by Borrowers Upon any adjustments to the Borrowing Base pursuant to Section 9.12(d), Section 9.12(e) or Agent Section 9.12(f), if the total Revolving Credit Exposures exceeds the Borrowing Base as adjusted, then the Borrower shall (iA) under prepay the Borrowings in an aggregate principal amount equal to such excess, and (B) if any insurance policy on account excess remains after prepaying all of damage or destruction of any assets or property of any Borrowers, or (ii) the Borrowings as a result of any taking or condemnation an LC Exposure, pay to the Administrative Agent on behalf of any assets or property the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j). The Borrower shall be applied obligated to make such prepayment and/or deposit of cash collateral (1) in the case of an adjustment as a result of a Disposition or Liquidation in accordance with Section 6.69.12(d), on the second (2nd) Business Day succeeding the date of the consummation of such Disposition and/or Liquidation or (2) in the case of Section 9.12(e) and Section 9.12(f), on the second (2nd) Business Day succeeding the date on which the Administrative Agent notifies the Borrower of the amount of the adjusted Borrowing Base; provided that all payments required to be made pursuant to this Section 3.04(c)(iii) must be made on or prior to the Termination Date.
(iv) Upon any adjustments to the Borrowing Base pursuant to Section 2.07(e), if the total Revolving Credit Exposures exceeds the Borrowing Base as adjusted, then the Borrower shall (A) prepay the Borrowings in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j). The Borrower shall be obligated to make such prepayment and/or deposit of cash collateral, if required, on the first (1st) Business Day succeeding the date the Parent, the Borrower and/or Finance Co issues Senior Notes; provided that all payments required to be made pursuant to this Section 3.04(c)(iv) must be made on or prior to the Termination Date.
(v) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto.
(vi) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(c) shall be accompanied by accrued interest to the extent required by Section 3.02.
Appears in 2 contracts
Sources: Credit Agreement (Oasis Petroleum Inc.), Credit Agreement (Oasis Petroleum Inc.)
Mandatory Prepayments. (a) When If at any time the amount equal to the sum of (i) the outstanding principal amount of all Revolving Credit Loan Advances and the Swing Loan Advances, plus (ii) the Letter of Credit Liabilities, exceeds the Revolving Credit Commitments, the Borrower sells shall promptly prepay Revolving Credit Loan Advances, Swing Loan Advances and the Letter of Credit Disbursements by the amount of the excess or, if no Revolving Credit Loan Advances, Swing Loan Advances or otherwise disposes Letter of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in Credit Disbursements are outstanding, the aggregate in any fiscal year, Borrower shall immediately pledge to the Agent cash or Cash Equivalent Investments (subject to no other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Liens) in an amount equal to the Net Disposition Proceeds excess as security for the Obligations. Any such mandatory prepayments shall be applied first to the Term Loan, then to the Swing Loan Advances, then to Letter of such saleCredit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, such repayments then to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsBase Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and until then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the amount prepaid to the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofprepayment.
(b) Notwithstanding After any reduction in the foregoingRevolving Credit Commitments pursuant to Section 2.12, the Borrower shall promptly prepay the outstanding Revolving Credit Loan Advances and Swing Loan Advances by the amount which the sum of the outstanding principal amount of the Advances under the Revolving Credit Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the Revolving Credit Commitments, as reduced.
(c) Upon the Disposition of any assets (other than Dispositions of equity interests or Dispositions of assets permitted under Sections 9.8(a) and (d)), the Borrower shall promptly prepay the Advances by an amount equal to the Net Proceeds of such Disposition; provided however, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment Dispositions permitted under Section 2.20(aSections 9.8(b), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers and (e), the Borrower shall promptly prepay the outstanding amount of the Term Loans in Advances by an amount equal to twenty-five percent the Net Proceeds of such Disposition to the extent such amount exceeds either (25%i) of Excess Cash Flow $2,000,000 per Disposition or (ii) $6,000,000 in the aggregate for each fiscal year beginning with all Dispositions which have occurred since the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for date hereof. Any such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount mandatory prepayments shall be applied first to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Swing Loan Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) to Letter of such net cash proceeds received from Credit Disbursements for which the issuance of Equity Interests shall be applied (x) firstIssuing Bank has not been reimbursed by the Borrower, then to the outstanding principal installments of Base Rate Advances under the Term Loan in Revolving Credit Loan, then to Eurodollar Advances under the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount Revolving Credit Loan, and (y) second, then to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments Liabilities. Any prepayments hereunder shall be applied accompanied with accrued and unpaid interest on the amount prepaid to cash collateralize any Obligations related to outstanding Letters the date of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Mandatory Prepayments. (a) When The Borrower shall prepay the Loans with the Net Cash Proceeds of Asset Sales to the extent required by subsections 6.6(c) and (d).
(b) If at any time the Borrower sells shall make a voluntary prepayment of loans under the Other Vendor Credit Facility or otherwise disposes shall voluntarily make a prepayment of any Collateral resulting term loans, or a Permanent Reduction, under the Existing Bank Credit Facility and such prepayment or Permanent Reduction is not made in Net Disposition Proceeds in excess connection with a Permitted Refinancing, the Borrower shall, subject to the provisions of $500,000 in subsection 2.16, prepay the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Loans in an amount equal to the Net Disposition Proceeds product of such sale, such repayments to be made promptly but in no event more than three (3i) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the then outstanding principal installments amount of the Term Loan in Loans multiplied by (ii) a fraction (A) the inverse order numerator of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and which is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds loans so voluntarily prepaid under the Other Vendor Credit Facility or the Existing Bank Credit Facility or the amount of the Permanent Reduction, as the case may be, and (B) the denominator of which is the aggregate then outstanding principal amount of loans under the Other Vendor Credit Facility or such portion thereofthe Existing Bank Credit Facility (in the case of prepayment of term loans) to pay or the actual cost aggregate amount of reinvestment and revolving credit commitments under the reserve with respect to such amount shall be released and shall be available to Borrowers Existing Bank Credit Facility, (in the case of a Permanent Reduction) as a Revolving Advancethe case may be, so long as (i) Borrowers have sufficient Undrawn Availability (after in any case, before giving effect to the release any such voluntary prepayment of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 loans or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentPermanent Reduction.
(c) Borrowers shall prepay the outstanding amount Partial prepayments of the Term Loans in an amount equal pursuant to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount this subsection shall be applied to the outstanding principal then remaining installments of principal thereof pro rata according to the Term Loan in the inverse order of the maturities respective amounts thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Each such prepayment shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of together with any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than amounts payable pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used subsection 2.14 and accrued interest to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if date on the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interestsamount prepaid. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy Amounts prepaid on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall the Loans may not be applied in accordance with Section 6.6reborrowed.
Appears in 2 contracts
Sources: Credit Agreement (Sprint Spectrum L P), Credit Agreement (Sprint Spectrum Finance Corp)
Mandatory Prepayments. (a) When Subject to Section 7.1 hereof, when any Borrower Loan Party or any Subsidiary sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers Loan Parties shall repay the Advances in an amount equal to the Net Disposition Cash Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsNet Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgents. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan A in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, second to the outstanding principal installments of the Term Loan B in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, and (y) second, third to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments of the remaining Advances shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Administrative Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
; provided further, that (bx) Notwithstanding in the foregoingevent any Loan Party has received Net Cash Proceeds from any sale or disposition permitted pursuant to Section 7.1 hereof, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and (y) the Borrowing Agent shall have notified Agent has delivered a Reinvestment Notice within two five (25) Business Days following receipt of such Net Disposition Proceeds Cash Proceeds, and (z) no Default or Event of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of Default is continuing, such Net Disposition Cash Proceeds in fixed may, at Borrowers’ option, be deposited into a separate Depository Account at PNC, or capital assets or other assets useful applied to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the outstanding Revolving Advances and Agent Borrowers shall implement a reserve equal be permitted to use such proceeds held in such separate Depository Account, or reborrow Revolving Advances (if such proceeds were applied to Revolving Advances) in accordance with the terms hereof in the amount of such Net Disposition Cash Proceeds pursuant to Section 2.1(a)(y)(vi)purchase replacement assets, so long as such replacement assets are purchased no later than one hundred eighty (180) days from the date the Reinvestment Notice was received by the Agents. To the extent replacement assets are not purchased within such one hundred eighty (180) day period or an Event of Default occurs, Borrowers may request shall apply such proceeds held in such separate Depository Account, or be deemed to have requested a Revolving Advances Advance in the amount of the Net Disposition Proceeds (such net cash proceeds, and such proceeds or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount Revolving Advances shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to applied in the release of manner set forth before the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentproviso above.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(db) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Loan Parties or any Subsidiary or the issuance of any Equity Interests (except as set forth in Section 10.17 or in connection with a Qualified IPO) by any Loan Party or any Subsidiary, Loan Parties shall, no later than three (3) Business Day after the receipt by such Loan Party or any Subsidiary of (i) the Net Cash Proceeds from any such issuance or incurrence of Indebtedness or (ii) the Net Cash Proceeds of any issuance of Equity Interests, as applicable, repay the Advances in an amount equal to (x) one hundred percent (100%) of such Net Cash Proceeds in the case of such incurrence or issuance of Indebtedness and (y) one hundred percent (100%) of such Net Cash Proceeds in the case of an issuance of Equity Interests. Such repayments will be applied in the same manner as set forth in Section 2.20(a) hereof.
(c) All proceeds received by Loan Parties or any Subsidiary or Administrative Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Loan Party or any Subsidiary, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6 hereof; provided, that (x) in the event Borrowing Agent has delivered a Reinvestment Notice within five (5) Business Days following receipt of Net Cash Proceeds from any casualty or condemnation event, and (y) no Default or Event of Default is continuing, such Net Cash Proceeds may, at Borrowers’ option, be deposited into a separate Depository Account at PNC, or applied to the outstanding Revolving Advances and Borrowers shall be permitted to use such proceeds held in such separate Depository Account, or reborrow Revolving Advances (if such proceeds were applied to Revolving Advances) to purchase replacement assets, so long as such replacement assets are purchased no later than one hundred eighty (180) days from the date the Reinvestment Notice was received by the Agents. To the extent replacement assets are not purchased within such one hundred eighty (180) day period or an Event of Default occurs, Borrowers shall apply such proceeds held in such separate Depository Account, or be deemed to have requested a Revolving Advance in the amount of such net cash proceeds, and such proceeds or Revolving Advances shall be applied in the manner set forth in Section 6.6. hereof.
(d) In the event of any issuance of Equity Interests by Loan Parties or any Subsidiary in connection with a Qualified IPO, the Loan Parties shall, no later than three (3) Business Days after the receipt by Borrowers such Loan Party or any Subsidiary of the cash proceeds from any Net Cash Proceeds of such issuance or incurrence of IndebtednessQualified IPO, repay the Advances in an amount equal to one hundred forty percent (100.0040%) of such cash proceeds in the case of Net Cash Proceeds, such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan A in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, second to the outstanding principal installments of the Term Loan B in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, and (y) second, third to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments of the remaining Advances shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Administrative Agent may determine determine, subject to Borrowers’ ability to reborrow re-borrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (A.S.V., LLC), Revolving Credit, Term Loan and Security Agreement (Manitex International, Inc.)
Mandatory Prepayments. (a) When (i) The Borrower shall use 100% of the Net Proceeds of any sale or disposition by the Borrower sells or any Subsidiary (other than any Permitted Asset Sale)whether effected pursuant to a Division or otherwise disposes or of any Casualty, within five (5) Business Days of receipt thereof to make a prepayment of the Term Loans. In the event of a Casualty (other than a Casualty described in clause (c) of the definition thereof) of Collateral or of any Specified Aircraft, the Loan Parties (i) shall cause the Net Proceeds to be delivered to the Administrative Agent as loss payee, and (ii) in lieu of making a prepayment under this Section 2.8(a)(i) with respect to such Casualty, may substitute Collateral (of the same or better lien priority and perfection) of equal or greater aggregate value as determined by a methodology mutually agreeable to the Borrower and the Administrative Agent, provided that tangible assets will be replaced with tangible assets and intangible assets will be replaced with intangible assets, within 90 days (or within a period of 90 days thereafter if by the end of such initial 90-day period the Borrower shall have entered into an agreement with a third party to acquire such tangible or intangible assets) of such Casualty. If at the end of any such 90-day period (or within a period of 90 days thereafter if by the end of such initial 90-day period the Borrower shall have entered into an agreement with a third party to acquire such tangible or intangible assets), any Net Proceeds from a Casualty of any Collateral resulting in or of Specified Aircraft have not been used for prepayment or substitute Collateral provided pursuant to this Section 2.8.(a)(i), then such Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments make a partial prepayment of the Term Loan in the inverse order Loans. Upon such a substitution of the maturities thereof, Collateral and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Administrative Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful promptly deliver to the business of the Borrower or such Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to Party the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in received by the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve Administrative Agent with respect to such amount shall be released and shall be available Collateral or Specified Aircraft relating to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause Casualty. Any such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount prepayment on account of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by under this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d2.8(a)(i) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with paragraph (c) below.
(ii) [Intentionally omitted].
(iii) [Intentionally omitted].
(iv) The Borrower shall prepay the Term Loans on a pro rata basis, in an amount equal to 100% of the aggregate Net Proceeds of any incurrence of any Indebtedness, other than Indebtedness permitted under Section 6.67.1.
(v) [Intentionally omitted.]
Appears in 1 contract
Mandatory Prepayments. (a) When any Subject to Section 4.3 hereof and excluding the exceptions set forth therein, when Borrower (i) sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business Business, (ii) issues or Dispositions sells any equity securities, capital stock or other ownership interests, or receives any capital contributions, (iii) incurs any Indebtedness (other than as permitted by Section 7.8 hereof), or (iv) receives any proceeds payable in connection with (A) any condemnation proceedings affecting any of the foregoing or any rights thereto or any interest in or to any Collateral or (B) any damage to or taking of any of the foregoing or any rights in any Collateral or any interest therein arising from or otherwise permitted relating to any exercise of the power of eminent domain, or any conveyance in lieu of or under Section 7.1threat of any such taking, Borrowers then Borrower shall repay the Advances in an amount equal to the Net Disposition Proceeds net cash proceeds of the foregoing (i.e., gross proceeds less the reasonable costs of such salesales, issuances, contributions or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or transaction otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ Borrower’s ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Loan in an amount equal to twenty-five percent (25%) % of Excess Cash Flow for each fiscal year beginning with the fiscal year ending commencing on or after December 31, 20222006, payable upon Agent’s request following delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.21(b), subject to adjustment (except that no amounts shall be readvanced under the Term Loan) when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Geokinetics Inc)
Mandatory Prepayments. (a) When Immediately upon receipt by the Borrower or any Borrower sells or otherwise disposes of its Subsidiaries of any Collateral resulting proceeds of any sale or disposition by the Borrower or any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in Net Disposition Proceeds an amount equal to all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in excess connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of inventory in the ordinary course of business, (ii) proceeds from the sales of assets securing Indebtedness permitted under Section 7.1(c) to the extent such proceeds are used to repay such Indebtedness, (iii) proceeds from other asset sales permitted under Section 7.6 in an aggregate amount less than (x) in any Fiscal Year, 10% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of the date of any such asset sale and (y) $500,000 150,000,000 in the aggregate after the Closing Date and (iv) proceeds that are reinvested in any fiscal year, other than Inventory assets then used or usable in the Ordinary Course business of Business the Borrower and its Subsidiaries within 180 days following receipt thereof. Any such prepayment shall be applied in accordance with subsection (c) of this Section.
(b) In the event that the Borrower or Dispositions otherwise any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Subsidiaries that is not permitted under Section 7.1, Borrowers shall repay the Advances Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to the Net Disposition Proceeds 100% of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, net of all fees, commissions, costs, underwriting discounts and until the date of payment, such proceeds shall be held other fees and expenses incurred in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstconnection therewith, to prepay the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with subsection (c) of this Section. In the provisions event that the Borrower or any of Section 3.2(b)its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness that constitutes (i) Incremental Term Loans or Revolving Loans in respect of Incremental Revolving Commitments, provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied in each case incurred to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest refinance all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be madeTerm Loans, (ii) Extended Term Loans or Revolving Loans in respect of Extended Revolving Commitments, in each case incurred to refinance all conditions or any portion of the Term Loans or (iii) Other Refinancing Loans incurred to funding sent forth refinance all or any portion of the Term Loans, the Borrower shall, substantially simultaneously with (and in Section 8.2 any event not later than the fifth succeeding Business Day) the receipt of such proceeds by the Borrower or 8.3 its applicable Subsidiary, apply an amount equal to 100% of such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the outstanding principal amount of the relevant Term Loans and, thereafter, to prepay the Obligations in accordance with subsection (as applicablec) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection.
(c) Borrowers Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section shall prepay be applied as follows: first, to the outstanding amount Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Term Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and
(d) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise increased pursuant to Section 2.23, the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by unpaid interest on such excess amount and any amounts due under Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements2.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory or Equipment in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1consistent with past practices, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three (3) 30 Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent, provided that, (i) no such prepayment or holding in trust shall be required with respect to such proceeds received during any fiscal year of a Borrower in an aggregate amount not exceeding $1,000,000, (ii) no Borrower shall be required to make any such prepayment prior to the date on which the aggregate amount of such proceeds with respect to which no such prepayment has been made is greater than $1,000,000, (iii) no such prepayment shall be required to the extent Borrowing Agent provides written notice to Agent within fifteen (15) Business Days following receipt of such net proceeds of a Borrower’s intent to use such net proceeds to acquire replacement assets within 180 days of such sale or other disposition, and (iv) such proceeds are in fact utilized within such 180-day period. Any proceeds not so utilized shall be paid in accordance with this Section. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Osteotech Inc)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Cash Proceeds of such salesale or disposition, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsNet Cash Proceeds, and until the date of payment, such proceeds Net Cash Proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xrequired under this Section 2.21(a) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) the Advances in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(eb) Other than pursuant to In the event of any issuance or other incurrence of Indebtedness or Equity Interests (excluding non-cash equity transactions resulting from employee stock option or other incentive plans of Borrowers (iEmpeiria and Indebtedness or Equity Interests issued by a Borrower to another Borrower) contemplated by Section 6.5(d)any Borrower or any of its Subsidiaries, (ii) used including any capital contributions to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted AcquisitionsEmpeiria by any of Empeiria’s shareholders, Borrowers shall, if an Event of Default exists at the time of issuance or incurrence, repay the Advances in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received by such Borrowers or Subsidiaries (or any of them) in connection therewith no later than one (1) Business Day after such receipt. Nothing in this Section 2.21(b) shall provide Agent within ten (10) days’ written notice of be deemed or construed to permit any such issuance or incurrence of Indebtedness or Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal Interests that is prohibited under the terms of Equipment and Real Property to determine if the then outstanding balance this Agreement or any of the Term Loan exceeds Other Documents.
(c) If any of the Term Loan Collateral Amount Borrowers or any of their respective Subsidiaries receives any Extraordinary Receipts, Borrowers shall, if an Event or Default exists at the time of such issuance of Equity Interests. If Agent does not order receipt, repay the Advances in an appraisal of the Equipment and Real Property, then amount equal to one hundred percent (100.00100%) of the such Extraordinary Receipts (net of any reasonable fees, costs and expenses incurred in collecting such Extraordinary Receipts) no later than three (3) Business Days after such receipt.
(d) Subject to Section 4.11, when any Borrower receives cash proceeds received from of any insurance (including business interruption and key man insurance), Borrowers shall repay the issuance Advances in an amount equal to such cash proceeds (net of Equity Interests any reasonable fees, costs and expenses incurred in collecting such cash proceeds) no later than three (3) Business Days after such receipt, and until the date of payment, such proceeds shall be held in trust for Agent. Such repayments required under this Section 2.21(d) shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Empeiria Acquisition Corp)
Mandatory Prepayments. (ai) When any Borrower sells or otherwise disposes Sales of Assets and Insurance/Condemnation Proceeds.
(A) Within five (5) Business Days of any Collateral sale of assets or series of related sales of assets permitted under Section 8.02(d)(v) resulting in Net Disposition Cash Proceeds for all such sales of assets in excess of $10,000,000 in the aggregate (or $200,000,000 in the aggregate so long as the Secured Net Leverage Ratio is equal to or less than 2.00 to 1.00 on a pro forma basis) and subject to Section 5.06(b)(ii) below, the Borrower shall immediately pay or cause to be paid an aggregate amount equal to 100% of such Net Cash Proceeds in excess of $500,000 such applicable threshold to the Administrative Agent for distribution to the Lenders in accordance with each such Lender’s Ratable Share of the Facility based on the aggregate in any fiscal year, other than Inventory in the Ordinary Course amount of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of Term Loans outstanding at such sale, such repayments to be made promptly but in no event more than three time.
(3B) Within five (5) Business Days following receipt of such net proceedsany Net Insurance/Condemnation Proceeds in excess of $10,000,000 in the aggregate, and until subject to Section 5.06(b)(ii) below, the date of payment, such proceeds Borrower shall be held in trust for Agent. The foregoing shall not be deemed immediately pay or cause to be implied consent paid an aggregate amount equal to any 100% of such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, Net Insurance/Condemnation Proceeds to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, Administrative Agent for distribution to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Lenders in accordance with each such Lender’s Ratable Share of the provisions Facility based on the aggregate amount of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, Term Loans outstanding at such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereoftime.
(bC) Notwithstanding the foregoing, with solely to the extent that any ABL Facility is then outstanding and prior to the Discharge of ABL Obligations (as defined in the ABL Intercreditor Agreement or any comparable definition), clauses (A) and (B) above shall not apply in respect to of any Net Disposition Cash Proceeds which would otherwise give rise from the sale of assets, or any Net Insurance/Condemnation Proceeds, constituting (x) ABL Priority Collateral or (y) in the case of the sale of the equity interests of a Subsidiary that owns ABL Priority Collateral, the portion of such proceeds of such sale attributable to a prepayment under Section 2.20(a)ABL Priority Collateral, as provided for in the ABL Intercreditor Agreement, (i) so long as no Default specified under Section 9.01(a), (k) or (l) or Event of Default shall have occurred and be continuing continuing, or (ii) during the continuance of any such Default or Event of Default, to the extent such proceeds are used to repay or cash collateralize ABL Obligations.
(D) Notwithstanding any of the other provisions of this Section 5.06(b), if at the time that any prepayment pursuant to clauses (i)(A) and (B) of this Section 5.06(b) would be required, the Borrower is required to prepay or offer to repurchase any Incremental Notes or Refinancing Notes (in each case, to the extent secured by Liens on the Collateral ranking pari passu basis with the Obligations) and the Borrowing Agent shall have notified Agent within two Permitted Refinancing of any such Debt, in each case pursuant to the terms of the documentation governing such Debt, with the Net Cash Proceeds for such sales of assets or Net Insurance/Condemnation Proceeds (2such Incremental Notes and Refinancing Notes (or the Permitted Refinancing of any such Debt) Business Days following receipt of required to be prepaid or offered to be so repurchased, “Other Applicable First Priority Indebtedness”), then the Borrower may apply such Net Disposition Cash Proceeds and Net Insurance/Condemnation Proceeds on a pro rata basis (determined on the basis of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any aggregate outstanding principal amount of the Term Loans and Other Applicable First Priority Indebtedness at such time; provided that the portion of such Net Disposition Cash Proceeds in fixed or capital assets or other assets useful and Net Insurance/Condemnation Proceeds allocated to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Other Applicable First Priority Indebtedness shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to not exceed the amount of such Net Disposition Cash Proceeds and Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable First Priority Indebtedness pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds and Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans in accordance with the amount of the Net Disposition Proceeds (or such portion thereofterms hereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount prepayment of the Term Loans in an and to the prepayment or repurchase of Other Applicable First Priority Indebtedness, and the amount equal of prepayment of the Term Loans that would have otherwise been required pursuant to twenty-five percent clauses (25%i)(A) and (B) of Excess Cash Flow for each fiscal year beginning with this Section 5.06(b), as applicable, shall be reduced accordingly; provided, further, that to the fiscal year ending December 31extent the holders of Other Applicable First Priority Indebtedness decline to have such indebtedness prepaid or repurchased, 2022, payable upon delivery of the financial statements to Agent referred to in declined amount shall promptly (and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) within five Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) date of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (xrejection) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances prepay the Term Loans in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (Arch Coal Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than Within three (3) Business Days following receipt of such net proceeds, and until the date of paymentreceipt by any Loan Party of (A) the Net Cash Proceeds of any voluntary or involuntary sale or disposition by any Loan Party under clause (o) of the definition of Permitted Disposition (other than the receipt of Net Cash Proceeds from the sale or disposition of assets of or equity interests in Non-Core Entities) or (B) insurance proceeds related to 5▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, which in each case, such proceeds shall be held in trust for Agent. The foregoing amount shall not be deemed less than $3,000,000, Borrower shall use such Net Cash Proceeds to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to prepay the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Loans in accordance with the provisions of Section 3.2(b2.3(h), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)that, so long as (A) no Default or Event of Default shall have occurred and be is continuing and or would result therefrom (other than the Borrowing Agent Specified Defaults), (B) Borrower shall have notified obtained Agent’s prior written consent to such Loan Party applying such monies for the replacement, purchase, or construction on the properties or assets useful in the business of the Loan Parties, (C) the monies are held in a Deposit Account subject to a Control Agreement in favor of Agent and in which Agent has a perfected first priority security interest, and (D) such Loan Party has, within two (2) Business Days 365 days following the initial receipt of such Net Disposition Proceeds proceeds, applied such monies to the costs of the applicable purchase, construction, repair or restoration on the properties or assets held by the Loan Party’s Parties), such Loan Party shall have the option to apply such monies to the costs of the replacement, purchase, or its Subsidiary’s election to reinvest all construction on the properties or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to in the business of the Loan Parties unless and their Subsidiariesto the extent that such applicable period shall have expired without such replacement, then such Net Disposition Proceeds purchase or construction being made or completed, in which case, any amounts not reinvested in accordance with the foregoing after expiration of the applicable period above shall be paid to Agent and the Lenders and applied by Agent in accordance with Section 2.3(h). For the avoidance of doubt and notwithstanding anything herein to the Revolving Advances and Agent shall implement contrary, the Disposition of any assets by a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount Non-Core Entity will not require any prepayment of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofLoans. In the event that the financial statements are not so deliveredaddition, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than within three (3) Business Days after following the date of receipt by Borrowers any Loan Party of the cash proceeds from Net Cash Proceeds of any such issuance voluntary or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent involuntary sale or disposition by any Loan Party under clause (100.00%r) of such cash proceeds in the case definition of Permitted Disposition, Borrower shall use 90% of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, Net Cash Proceeds to prepay the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied Loans in accordance with Section 6.62.3(h).
Appears in 1 contract
Mandatory Prepayments. In addition to the repayments of the Advances required by Section 2.2.1, the Borrower shall make mandatory prepayment of the Advances, shall cash collateralize LC Exposure and there shall occur mandatory reductions of the Aggregate Commitment, as follows:
(ai) When any Borrower sells or otherwise disposes Concurrently with the receipt of any Collateral resulting in Net Disposition Proceeds (in excess of $500,000 10,000,000 in the aggregate in over the term of this Agreement) from any fiscal yearsales, transfers or other dispositions of assets (other than Inventory the sale of inventory, Cash Equivalent Investments in the Ordinary Course ordinary course of Business business or Dispositions otherwise permitted under Section 7.1De Minimus Sales), Borrowers the Borrower shall repay make a mandatory prepayment of the Advances (and thereafter, to the extent that the aggregate amount of Advances outstanding is less than an amount equal to 100% of such Net Proceeds, cash collateralize LC Exposure in the manner set forth in Section 2.21.10) in an amount equal to 100% of such Net Proceeds (or, if less, the aggregate outstanding amount of the Advances) and the Aggregate Commitment shall be automatically reduced by the amount of such Net Proceeds; provided that, if within ten Business Days after receipt of any such Net Proceeds the Borrower delivers to the Administrative Agent a certificate of the Borrower’s chief financial officer to the effect that the Borrower intends to apply such Net Proceeds (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Borrower and its Subsidiaries, no such prepayment shall be required except that to the extent any such Net Proceeds are not so applied by the end of such 180 day period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied.
(ii) Upon the sale or series of sales or issuance of any common or preferred equity interests, limited liability company membership interests, warrants or other equity or the incurrence of any Subordinated Indebtedness or Indebtedness not permitted by Section 6.11, in either case by the Borrower or any Subsidiary, or any equity contribution to the Borrower, the Borrower shall make a mandatory prepayment of the Advances (and thereafter, to the extent that the aggregate amount of Advances outstanding is less than an amount equal to 100% of the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt issuance or incurrance, or the proceeds of such net proceedsequity contribution, cash collateralize LC Exposure in the manner set forth in Section 2.21.10) in an amount equal to 100% of the Net Proceeds thereof or of the proceeds of such equity contribution (or, if less, the aggregate outstanding amount of the Advances) and until the date of payment, such proceeds Aggregate Commitment shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited automatically reduced by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of such equity contribution; provided that sales to employees under the Revolving Advances to pay Borrower’s employee stock purchase plan or employee stock option plan are excluded from the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms mandatory prepayment and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the commitment reduction provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
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Mandatory Prepayments. (ai) When If the Administrative Agent notifies the Borrowers at any time that the Revolving Credit Exposure at such time exceeds an amount equal to 100% of the Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the applicable Borrower sells or otherwise disposes shall prepay Revolving Loans and/or Cash Collateralize the L/C Exposure in an aggregate amount equal to the amount sufficient to reduce such Revolving Credit Exposure as of any Collateral resulting such date of payment to an amount not to exceed 100% of the Revolving Commitments then in Net Disposition Proceeds in excess effect; provided, however, that, subject to the provisions of $500,000 in Section 2.21, the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay not be required to Cash Collateralize the Advances L/C Exposures pursuant to this Section 2.09(b) unless, after the prepayment in full of the Revolving Loans, the Revolving Credit Exposure exceeds the Revolving Commitments then in effect. Notwithstanding anything else in this Agreement to the contrary, for purposes of this Section 2.09(b)(i), the Cash Collateralization of L/C Exposure shall be deemed to reduce the Revolving Credit Exposure by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited L/C Exposure Cash Collateralized by the terms and conditions hereof. Such repayments Borrowers.
(ii) [Reserved].
(iii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) of this Section 2.09(b), first, shall be applied (x) first, ratably to the outstanding principal installments of Unreimbursed Amounts and the Term Loan in the inverse order of the maturities thereofSwingline Loans, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize outstanding Classes of Revolving Loans as directed by the Borrowers, and, third, shall be used to Cash Collateralize the remaining L/C Exposures. Upon the drawing of any Obligations related to outstanding Letters Letter of Credit last) in such order that has been Cash Collateralized, the funds held as Agent may determine, Cash Collateral shall (subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(bSection 2.05(c)(i)) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, without any further action by or notice to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied Borrowers or any other Loan Party) to reimburse the Issuing Banks or the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term LoanLenders, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofapplicable.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event and on each Business Day on which the total Revolving Exposure exceeds 100% of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearLine Cap, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall without notice or demand, first, repay or prepay any outstanding Swing Line Loans, second, repay or prepay any Protective Advances, third, repay or prepay other Borrowings, and fourth, at the Advances Borrower Agent’s option, either replace outstanding Letters of Credit or Cash Collateralize or backstop in an amount equal a manner reasonably acceptable to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any applicable Issuing Bank outstanding Letters of Credit in accordance with an aggregate amount sufficient to eliminate such excess; provided that at any time Protective Advances are outstanding and the provisions total Revolving Exposure at such time (excluding such Protective Advances) is less than 100% of Section 3.2(b)the Line Cap at such time, provided however that if no Default or Event of Default has occurred and is continuing, the Borrowers shall only be required to make such repayments shall be applied or prepayments to cash collateralize any Obligations related to the extent (x) the aggregate principal amount of such outstanding Letters Protective Advances exceeds 10% of Credit lastthe Line Cap or (y) in the total Revolving Exposure exceeds the Total Revolving Commitments at such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereoftime.
(b) Notwithstanding After the foregoing, with respect occurrence and during the continuance of a Cash Dominion Event and notification thereof by the Administrative Agent to any Net Disposition Proceeds the Borrower Agent which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default notification shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) delivered three Business Days following receipt the occurrence of such Net Disposition Proceeds Cash Dominion Event (subject to the terms of the applicable Loan Party’s Guaranty and Collateral Agreement), on each Business Day, at or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful before 1:00 p.m., New York City time, the Administrative Agent shall, subject to the business of the ABL/Term Loan Parties and their SubsidiariesIntercreditor Agreement, then such Net Disposition Proceeds shall be applied by Agent apply all immediately available funds credited to the Revolving Advances and Administrative Agent’s Account or otherwise received by Administrative Agent shall implement a reserve equal for application to the Obligations, first, to pay any fees, indemnities or expense reimbursements then due to the Administrative Agent, the Issuing Banks and the Lenders constituting Obligations, pro rata, second, to prepay the principal and interest of any Swing Line Loans that may be outstanding, pro rata, third, to prepay the principal and interest of any Protective Advances that may be outstanding, pro rata, fourth, to pay interest due and payable in respect of any other Loans that may be outstanding, pro rata, fifth, to prepay the principal of any other Loans that may be outstanding and to Cash Collateralize the aggregate face amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) outstanding LC Exposure, pro rata, sixth, to pay or prepay any other Obligations (other than Obligations in connection with Secured Cash Management Obligations or Secured Swap Agreements and contingent indemnification obligations for which no claim has yet been made) whether or not then due, in such order and manner as the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving AdvanceAdministrative Agent determines; seventh, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay or prepay Obligations in connection with Secured Cash Management Obligations and/or Secured Swap Agreements, pro rata, and eighth, as the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentBorrower Agent may direct.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.[Reserved];
Appears in 1 contract
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes will make all payments on the Obligations which are required under the Intercreditor Agreement, including all prepayments of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in principal on the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted Notes which are required under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (33(a)(iv) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofIntercreditor Agreement.
(b) Notwithstanding If at any time the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to Facility Usage plus the aggregate of amount of outstanding LC Obligations is in excess of the Borrowing Base (such excess being herein called a prepayment under Section 2.20(a"Borrowing Base Deficiency"), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent Borrower shall, within two (2) five Business Days following receipt after Agent gives notice of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election fact to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their SubsidiariesBorrower, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as either:
(i) Borrowers have sufficient Undrawn Availability (after giving effect to prepay the release principal of the reserve for Loans in an aggregate amount at least equal to such amount) to cause such Revolving Advances to be madeBorrowing Base Deficiency, or
(ii) give notice to Agent electing to prepay the principal of the Loans in up to three monthly installments in an aggregate amount at least equal to such Borrowing Base Deficiency, with each such installment equal to or in excess of one-third of such Borrowing Base Deficiency, and with the first such installment to be paid one month after the giving of such notice and the subsequent installments to be due and payable at one month intervals thereafter until such Borrowing Base Deficiency has been eliminated, or
(iii) give notice to Agent that Borrower desires to provide Agent with deeds of trust, mortgages, chattel mortgages, security agreements, financing statements and other security documents in form and substance satisfactory to Agent, granting, confirming, and perfecting first and prior liens or security interests in collateral acceptable to all conditions Banks, to funding sent forth in Section 8.2 or 8.3 the extent needed to allow all Banks to increase the Borrowing Base (as applicablethey in their reasonable discretion deem consistent with prudent oil and gas banking industry lending standards at the time) to an amount which eliminates such Borrowing Base Deficiency, and then provide such security documents within thirty days after Agent specifies such collateral to Borrower. If, prior to any such specification by Agent, Required Lenders determine that the giving of such security documents will not serve to eliminate such Borrowing Base Deficiency, then, within five Business Days after receiving notice of such determination, Borrower will elect to make, and thereafter make, the prepayments specified in either of the preceding subsections (i) or (ii) of this Agreement have been satisfied and subsection (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentb).
(c) Borrowers shall prepay the outstanding amount Each prepayment of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount principal under this section shall be applied accompanied by all interest then accrued and unpaid on the principal so prepaid. Any principal or interest prepaid pursuant to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts this section shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsaddition to, and Agent not in its sole discretionlieu of, within such ten (10) day period, may request an appraisal of Equipment and Real Property all payments otherwise required to determine if be paid under the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount Documents at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Within three Business Days after the Company's receipt of any Collateral resulting in Net Disposition Cash Proceeds in excess of $500,000 in Sale, the aggregate in any fiscal year, other than Inventory in Company shall make a written offer to the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay Banks to prepay the Advances in Term Loans by an amount equal to the 50% of such Net Disposition Cash Proceeds of Sale; provided, however, that (i) the Company may retain up to an aggregate of $100,000,000 of such saleNet Cash Proceeds of Sale during the term of this Agreement before it shall be required to make any such mandatory offer, and (ii) the Company shall not be required to make any such repayments mandatory offer unless and until the aggregate amount of such mandatory offer (on a cumulative basis) would be at least $1,000,000. Such offer shall be transmitted by facsimile and by overnight courier to each Bank and shall be made promptly but in no event more than deemed received on the Business Day following transmittal. Each Bank shall have three (3) Business Days following its receipt of such net proceedsoffer to submit a written response to the Company's prepayment offer, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing if any Bank shall not have responded by the close of business on the third Business Day, it shall be deemed to have accepted such offer. Payment shall be implied consent made to the Agent for the account of all Banks that have accepted the prepayment offer on the fourth Business Day following their receipt of the offer from the Company. If any Bank elects not to accept its Pro Rata Share thereof, such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied (x) first, ratably to the outstanding principal installments Term Loans of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however Banks that if no Default or Event of Default has occurred and is continuing, have accepted such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent offer. Amounts prepaid hereunder may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to reborrowed. Upon any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount prepayment of the Term Loans in an amount equal pursuant to twenty-five percent (25%) the terms of Excess Cash Flow for each fiscal year beginning with this Section 2.5, the fiscal year ending December 31Agent shall, 2022, payable upon delivery request of the financial statements Company, promptly surrender to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after or upon the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In Company one or more Bonds specified by the event Company; provided that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Company remains in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance compliance with Section 6.66.10.
Appears in 1 contract
Mandatory Prepayments. (a) When Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising (i) from an Asset Sale, Property Loss Event or Debt Issuance, the Borrower sells shall immediately prepay the Loans (or otherwise disposes provide cash collateral in respect of any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds 100% of such saleNet Cash Proceeds and (ii) from an Equity Issuance, such repayments the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to be made promptly but in no event more than three (3) Business Days following receipt 100% of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentNet Cash Proceeds. The foregoing shall not be deemed Subject to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b2.13(g) (Payments and Computations), provided however that if no Default or Event of Default has occurred and is continuing, any such repayments mandatory prepayment shall be applied as follows: first, to cash collateralize any Obligations related repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding Letters principal balance of Credit last) the Revolving Loans until such Revolving Loans shall have been paid in such order as Agent may determinefull; and then, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no if an Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 105% of such Net Disposition Proceeds Letter of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances Credit Obligations in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent manner set forth in Section 8.2 or 8.3 9.3 (as applicableActions in Respect of Letters of Credit) until all such Letter of this Agreement Credit Obligations have been satisfied fully cash collateralized in the manner set forth therein.
(b) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall forthwith prepay the Swing Loans first and (iii) Borrowers agree then the Revolving Loans then outstanding in an amount equal to use the proceeds such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Revolving Advances Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to pay the cost 105% of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentexcess.
(c) Borrowers shall prepay The Borrower hereby irrevocably waives the right to direct the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and shall, except as provided in Section 2.13(g) (Payments and Computations), apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the Term Swing Loans until such Swing Loans have been repaid in an amount equal full; second, to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to repay the outstanding principal installments balance of the Term Loan Revolving Loans until such Revolving Loans shall have been repaid in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, full; and then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required herebyany other Obligation then due and payable. The calculation made by Administrative Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of agrees so to apply such funds and the failure by Borrowers Borrower consents to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtednessapplication. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers If (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of following such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, application or (ii) as a result after all Letters of Credit shall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable, then the Administrative Agent shall cause any taking remaining funds in the Cash Collateral Account to be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or condemnation of any assets or property shall be applied in accordance with Section 6.6another Person lawfully entitled thereto).
Appears in 1 contract
Mandatory Prepayments. (ai) When The Borrower shall, within two Business Days of the date of receipt thereof, and in the amount of the receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from (A) from issuance of equity or equity linked securities (other than pursuant to stock options and other equity benefit plans or pursuant to the issuance of equity or equity linked securities by any Subsidiaries of the Borrower sells to the Borrower or otherwise disposes any of its other Subsidiaries) or (B) the incurrence or issuance of debt for borrowed money (other than pursuant to working capital lines of credit entered into by the Borrower’s subsidiaries that are organized under the laws of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, jurisdiction other than Inventory in the Ordinary Course of Business United States or Dispositions otherwise permitted under Section 7.1any political subdivision thereof or pursuant to intercompany borrowings), Borrowers shall repay the Advances comprising part of the same Borrowing ratably in an aggregate amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant Cash Proceeds.
(ii) The Borrower shall, on the date that the Borrower or any of its Subsidiaries enters into a bank credit facility (other than working capital lines of credit entered into by the Borrower’s subsidiaries that organized under the laws of any jurisdiction other than the United States or any political subdivision thereof), repay the Advances comprising part of the same Borrowing ratably in an aggregate amount equal to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release commitments of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and lenders thereunder.
(iii) Borrowers agree Each prepayment made pursuant to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(cSection 2.09(b) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make together with any interest accrued to the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) date of such cash proceeds prepayment on the principal amounts prepaid and, in the case of such incurrence any prepayment of a Eurodollar Rate Advance on a date other than the last day of an Interest Period or issuance of Indebtedness. Such repayments will at its maturity, any additional amounts which the Borrower shall be applied (x) first, obligated to reimburse to the outstanding principal installments Lenders in respect thereof pursuant to Section 8.04(c). The Agent shall give prompt notice of the Term Loan in the inverse order of the maturities thereof and (yany prepayment required under this Section 2.09(b) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property Borrower and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLenders.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Bridge Credit Agreement (Intuit Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise business (including close-out sales of finished goods Inventory in the ordinary course of business) and Equipment to the extent permitted under by Section 7.14.3 hereof, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ' ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Advances in an amount equal to twenty-five fifty percent (2550%) of Borrowers' Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31Fiscal Year commencing on or after January 1, 20221999, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year Fiscal Year but in any event not later than one hundred twenty ninety (12090) days after the end of each such fiscal yearFiscal Year, which amount shall be applied first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofthereof and, second, to the remaining Advances in such order as Agent may determine subject to Borrowers' ability to reborrow Revolving Advances in accordance with the terms hereof. In the event that the financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.13(b), subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Pietrafesa Corp)
Mandatory Prepayments. (a) When Within one Business Day after receipt during a Cash Dominion Period by the Parent or any Borrower sells or otherwise disposes of its Subsidiaries of any Collateral resulting proceeds of any sale or disposition by the Parent or any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, in Net Disposition Proceeds each case in excess of $500,000 in any Fiscal Year, the aggregate Borrowers shall prepay the Obligations in any fiscal yearan amount equal to all such proceeds, net of commissions and other than Inventory reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrowers in connection therewith (in each case, paid to non-Affiliates); provided that the Borrowers shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of assets in the Ordinary Course ordinary course of business, (ii) proceeds from other asset sales permitted under Section 7.6, or (iii) proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Parent and its Subsidiaries within 180 days following receipt thereof, so long as such proceeds are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(b) Within one Business Day after receipt by the Parent or Dispositions otherwise any of its Subsidiaries of any proceeds from any issuance of Indebtedness or equity securities by the Parent or any of its Subsidiaries, the Borrowers shall prepay the Obligations in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrowers in connection therewith (in each case, paid to non-Affiliates); provided that the Borrowers shall not be required to prepay the Obligations with respect to (i) proceeds of Indebtedness permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal (ii) proceeds of Capital Stock issued by a Loan Party to the Net Disposition Proceeds another Loan Party, (iii) proceeds of such saleCapital Stock issued by any Loan Party to members of management, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsdirectors, officers, and until employees pursuant to employment agreements, compensation or bonus plans, or employee stock or option plans of the date Parent and its Subsidiaries not to exceed 5.00% of payment, the total Capital Stock issued and outstanding on the Closing Date. Any such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
subsection (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicabled) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection.
(c) [Reserved.]
(d) Any prepayments made by the Borrowers pursuant to subsection (a), (b) or (c) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Agent Advances, until the same have been paid in full, fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and seventh, if any Event of Default exists, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon.
(e) If at any time the Aggregate Revolving Credit Exposure exceeds the lesser of (i) the Borrowing Base and (ii) the Aggregate Revolving Commitment Amount, the Borrowers shall prepay immediately repay the outstanding amount of Swingline Loans, any Agent Advances, and the Term Revolving Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by Section 9.7 for unpaid interest on such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount excess amount. Each prepayment shall be applied as follows: first, to the outstanding principal installments of Agent Advances to the Term Loan in full extent thereof; second, to the inverse order of Swingline Loans to the maturities full extent thereof; and third, to the Revolving Loans to the full extent thereof. In If, after giving effect to prepayment of all Swingline Loans, Agent Advances, and Revolving Loans, the event that Aggregate Revolving Credit Exposure exceeds the financial statements are not so deliveredAggregate Revolving Commitment Amount, then a calculation based upon estimated amounts shall be made by Agent upon which calculation the Borrowers shall make the prepayment required by this Section 2.20(c), subject Cash Collateralize their reimbursement obligations with respect to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver all Letters of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit in an amount equal to one hundred percent (100.00%) such excess plus any accrued and unpaid fees thereon. The Aggregate Revolving Commitments of such cash proceeds in the case Lenders shall not be permanently reduced by the amount of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, any prepayments made pursuant to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofimmediately preceding sentence.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When Upon receipt by any Borrower sells or otherwise disposes any of the Domestic Guarantors of any Collateral resulting in Net Disposition Cash Proceeds in excess of $500,000 in arising from any Property Loss Event or Domestic Asset Sale, the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay immediately prepay the Advances Domestic Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to the Net Disposition Proceeds of such saleAvailable Prepayment Amount; provided, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedshowever, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan that in the inverse order case of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Cash Proceeds which would otherwise give rise to arising from a prepayment under Section 2.20(a)Reinvestment Event, so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount Domestic Loans (or provide cash collateral in respect of the Term Loans Letters of Credit) in an amount equal to twenty-five percent (25%) the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to such Reinvestment Event and, pending application of Excess Cash Flow for each fiscal year beginning with such proceeds as specified in the fiscal year ending December 31Reinvestment Notice, 2022, payable upon delivery of shall pay the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied same to the outstanding principal installments of the Term Loan Administrative Agent to be held in the inverse order of the maturities thereofa Cash Collateral Account. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the Any such mandatory prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 6.62.13(g) (Payments and Computations), any prepayments made by the Borrowers pursuant to clause (a) above required to be applied in accordance with this clause (b)shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the Term Loans and the Domestic Revolving Loans ratably in accordance with the then outstanding amounts thereof; and third, to provide cash collateral for any Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. All repayments of Domestic Loans required to be made pursuant to this clause (b) shall result in a permanent reduction of the Commitments to the extent provided in Section 2.5(b) (Reduction and Termination of the Commitments).
(c) Upon receipt by any Foreign Borrowing Base Subsidiary or any Included Subsidiary of any Net Cash Proceeds arising from any Foreign Borrowing Base Asset Sale, the Company shall cause such Foreign Borrowing Base Subsidiary to prepay Foreign Intercompany Loans made to such Foreign Borrowing Base Subsidiary by the Company pursuant to clauses (h) and (i) of Section 8.1 (Indebtedness), and the Borrowers shall immediately prepay the Domestic Revolving Loans and the Foreign Revolving Loans in each case, in an amount equal to the Available Prepayment Amount. Any such mandatory prepayment shall be applied in accordance with clause (d) below. Credit Agreement EXIDE TECHNOLOGIES
(d) Subject to the provisions of Section 2.13(g) (Payments and Computations), any prepayments made by the Borrowers pursuant to clause (c) above required to be applied in accordance with this clause (d) shall be applied as follows: first, to repay the outstanding principal balance of the Domestic Revolving Loans under the Foreign Sublimit until such Domestic Revolving Loans shall have been repaid in full, second to repay the outstanding principal balance of the Foreign Revolving Loans until such Foreign Revolving Loans shall have been paid in full, and third, to provide cash collateral for any Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. All repayments of Revolving Loans required to be made pursuant to this clause (d) shall result in a permanent reduction of the Revolving Credit Commitments to the extent provided in Section 2.5(c) (Reduction and Termination of the Commitments).
(e) If at any time, the sum of the aggregate principal amount of Domestic Revolving Credit Outstandings plus the aggregate principal amount of Term Loan Outstandings exceeds the Domestic Maximum Credit at such time, the Borrowers shall forthwith prepay the Swing Loans first and then the Domestic Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Domestic Revolving Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 105% of such excess.
(f) If at any time, the aggregate principal amount of Foreign Revolving Credit Outstandings exceeds the Foreign Maximum Credit at such time, the Borrowers shall forthwith prepay the Foreign Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Foreign Revolving Loans, the Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 105% of such excess.
(g) Upon receipt by any Foreign Subsidiary of any Net Cash Proceeds arising from any Other Foreign Asset Sale or Foreign Non-Borrowing Base Asset Sale, the Company shall cause such Foreign Subsidiary to pay an amount equal to the Available Prepayment Amount to the Administrative Agent to be held in the Escrow Account. Any such mandatory prepayment shall be applied in accordance with clause (h) below.
(h) Subject to the provisions of Section 2.13(g) (Payments and Computations), any Net Cash Proceeds held by the Administrative Agent required to be applied in accordance with this clause (h) shall be applied as follows: first, to prepay Foreign Intercompany Loans made to such Foreign Subsidiary by the Company under the Foreign Sublimit pursuant to clauses (i) and (j) of Section 8.1 (Indebtedness), second, to prepay Foreign Intercompany Loans made to such Foreign Subsidiary by the Company under the Foreign Revolving Credit Facility pursuant to clauses (h) and (j) of Section 8.1 (Indebtedness), and, then, to be held by the Administrative Agent until such time as the Obligations are paid in full and all Letters of Credit have been fully cash collateralized at which time the Administrative Agent shall apply any such remaining Net Cash Proceeds in accordance with the terms of the Intercreditor Agreement.
(i) Upon receipt by any Foreign Subsidiary domiciled in Europe of any Net Cash Proceeds arising from any Indebtedness incurred by it pursuant to clause (o) of Section 8.1 (Indebtedness), the Borrowers shall cause Mercolec to prepay Foreign Intercompany Loans made Credit Agreement EXIDE TECHNOLOGIES to it by any Intercompany Lender pursuant to clause (j) of Section 8.1 (Indebtedness), and the Borrowers shall immediately prepay the Domestic Revolving Loans and the Foreign Revolving Loans in each case, in an amount equal to 100% of such Net Cash Proceeds. Any such mandatory prepayment shall be applied in accordance with clause (j) below.
(j) Subject to the provisions of Section 2.13(g) (Payments and Computations), any prepayments made by the Borrowers pursuant to clause (i) above or clause (l) below required to be applied in accordance with this clause (j) shall be applied as follows: first, to repay the outstanding principal balance of the Domestic Revolving Loans under the Foreign Sublimit until such Domestic Revolving Loans shall have been repaid in full, second to repay the outstanding principal balance of the Foreign Revolving Loans until such Foreign Revolving Loans shall have been paid in full, and third, to provide cash collateral for any Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(i) During the sixty (60) day period commencing on the Closing Date, on the first Business Day after the end of each calendar week, and (ii) commencing on the sixty-first (61st) day after the Closing Date and thereafter, on the first Business Day after receipt thereof, to the extent that the sum of (1) the aggregate cash and Cash Equivalents held by Mercolec plus (2) the Mercolec Cash Proceeds received by it during such preceding period exceeds $1,000,000 on such date, the Borrowers shall cause Mercolec to apply such excess to prepay the outstanding balance of (x) all intercompany loans made to Mercolec pursuant to clause (r) of Section 8.1 (Indebtedness) during the Interim Period, and (y) after the Interim Period, all Foreign Intercompany Loans made to Mercolec by any Intercompany Lender pursuant to clause (j) of Section 8.1 (Indebtedness), in either case, in an amount equal to 100% of such excess.
(l) On the last Business Day of each calendar month, the Borrowers shall cause each Foreign Borrowing Base Subsidiary to apply all proceeds received by it pursuant to clause (k) above to the repayment of all Foreign Intercompany Loans made to it by the Company pursuant to clause (h) and clause (i) of Section 8.1 (Indebtedness), and the Borrowers shall immediately prepay the Domestic Revolving Loans and the Foreign Revolving Loans, in each case, in an amount equal to 100% of such proceeds. Any such mandatory prepayment shall be applied in accordance with clause (j) above.
(m) Upon receipt by any Foreign Subsidiary of the Company of any Net Cash Proceeds arising from any Asset Sale pursuant to clause (h) or (i) of Section 8.4 (Sale of Assets), the Borrowers shall cause such Foreign Subsidiary to prepay Foreign Intercompany Loans made to such Foreign Subsidiary pursuant to clause (j) of Section 8.1 (Indebtedness).
(n) Except during the continuance of an Event of Default (in which case Section 2.13(g) (Payments and Computations) shall apply), all available funds in the Concentration Account (other than an amount equal to any Proceeds arising from a Reinvestment Event that are held in the Concentration Account pending application of such proceeds as specified in a Reinvestment Notice) shall be applied on a daily basis as follows: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees so to apply such funds and the Borrowers consent to such application. If, following such application, there are no Loans outstanding and no other Obligations that are then due and payable (and, during the continuance of an Event of Default, Credit Agreement EXIDE TECHNOLOGIES cash collateral has been provided in the amount of 105% of all outstanding Letter of Credit Obligations), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to be paid at the written direction of the Company.
Appears in 1 contract
Sources: Secured Super Priority Debtor in Possession Credit Agreement (Exide Corp)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Not later than the third Business Day following the receipt of Net Cash Proceeds in respect of any Fixed Asset Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, Sale (other than Inventory an Excluded Related Collateral Disposition or Other Asset Sale including Fixed Asset Collateral), the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(e).
(b) In the Ordinary Course event that the Borrower or any Restricted Subsidiary conducts any Other Asset Sale for which the Net Cash Proceeds (before deducting the Value of Business or Dispositions otherwise permitted under Section 7.1any Fixed Asset Collateral included therein) exceeds $10,000,000, Borrowers then (i) to the extent such Other Asset Sale includes any Fixed Asset Collateral, the Borrower shall repay the Advances apply proceeds in an amount equal to 100% of the Value of such Fixed Asset Collateral to prepay outstanding Loans in accordance with Section 2.13(e), (ii) if at least 75% of the consideration for such Other Asset Sale is paid or payable in cash, then not later than the third Business Date following the receipt of the Net Disposition Cash Proceeds of such saleOther Asset Sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt the Borrower shall apply 50% of such net proceedsNet Cash Proceeds received with respect thereto to prepay the outstanding Loans in accordance with Section 2.13(e) and (iii) if less than 75% of the consideration for such Other Asset Sale is paid or payable in cash, and until then not later than the third Business Date following the date of paymentsuch Other Asset Sale, the Borrower shall apply an amount equal to 37.50% of the aggregate consideration for such proceeds shall be held Other Asset Sale, net of the principal amount, premium or penalty, if any, interest and other amount of any Indebtedness which is secured by the assets sold in trust for such Other Asset Sale by a Lien permitted hereunder which, if the Administrative Agent has a Lien on such asset, is senior to the Administrative Agent. The foregoing shall not be deemed ’s Lien on such asset and is required to be implied consent to repaid with such proceeds, including the Value of any Fixed Asset Collateral included in such Other Asset Sale (excluding any such sale otherwise prohibited Indebtedness assumed by the terms and conditions hereof. Such repayments purchaser of such assets), to prepay the outstanding Loans in accordance with Section 2.13(e).
(c) No later than 90 days after the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending on February 23, 2013, the Borrower shall be applied prepay outstanding Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to (x) first, to 50% of Excess Cash Flow for the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and Fiscal Year then ended minus (y) second, to the remaining Advances (including cash collateralization voluntary prepayments of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment Loans under Section 2.20(a), so long as no Event 2.12 during such Fiscal Year; provided that such prepayments do not occur in connection with a refinancing of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to Indebtedness; provided, further, that the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve Excess Cash Flow percentage for any Fiscal Year with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of which Excess Cash Flow for each fiscal year beginning with is measured shall be reduced to (A) 25% if the fiscal year ending December 31, 2022, payable upon delivery Total Leverage Ratio as of the financial statements last day of such Fiscal Year is less than or equal to Agent referred to in 3.00:1.00 but greater than 2.50:1.00 and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120B) days after zero if the end of each such fiscal year, which amount shall be applied to the outstanding principal installments Total Leverage Ratio as of the Term Loan in the inverse order last day of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject such Fiscal Year is less than or equal to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements2.50:1.00.
(d) In the event of that the Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness for money borrowed (other than Permitted Indebtedness) by Borrowers), Borrowers the Borrower shall, no substantially simultaneously with (and in any event not later than three (3the first Business Day next following) Business Days after the receipt of such Net Cash Proceeds by Borrowers of the cash proceeds from any Borrower or such issuance or incurrence of IndebtednessRestricted Subsidiary, repay the Advances in apply an amount equal to one hundred percent (100.00%) 100% of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, Net Cash Proceeds to the prepay outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Loans in accordance with the provisions of Section 3.2(b2.13(e), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro rata between the Loans, the Other Loans and the Extended Loans (unless Other Loans or Extended Loans agreed to receive less than pursuant to any issuance their pro rata share) and applied pro rata against the remaining scheduled installments of Equity Interests principal due in respect of Borrowers the Loans, Other Loans and the Extended Loans under Sections 2.11(a)(i) and (i) contemplated by Section 6.5(dii), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofrespectively.
(f) All proceeds received by Borrowers or Agent The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) under any insurance policy on account a certificate signed by a Responsible Officer of damage or destruction the Borrower setting forth in reasonable detail the calculation of any assets or property the amount of any Borrowers, or such prepayment and (ii) as a result to the extent practicable, at least three Business Days prior written notice of any taking such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or condemnation portion thereof) to be prepaid. All prepayments of any assets or property Borrowings under this Section 2.13 shall be applied in accordance with subject to Section 6.62.16, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
Appears in 1 contract
Mandatory Prepayments. Subject to Section 4.3 hereof, when Borrower (ai) When any Borrower sells or otherwise disposes of any First Priority Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business Business, (ii) issues Equity Interests in Borrower or Dispositions any of its Subsidiaries after the Closing Date (other than issuances of Equity Interests in Borrower or any of its Subsidiaries in connection with the Warrant to Purchase Shares of Common Stock dated as of June 23, 2011 issued by Borrower to SG-GN/SD, LLC, an Arkansas limited liability company, and any employee stock option arrangement or other employee-based compensation), or (iii) issues debt obligations of Borrower or any of its Subsidiaries after the Closing Date (other than the Senior Note Documents and any debt obligations issued after the Closing Date and otherwise permitted under pursuant to Section 7.17.8 hereof), Borrowers Borrower shall repay the Advances Advances, subject to the terms and conditions of the Intercreditor Agreement, in an amount equal to the Net Disposition Proceeds net cash proceeds of such salesale or issuance (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net cash proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided, however, any repayments arising under the foregoing clause (ii) shall not be payable until the earlier to occur of (x) the date that is one year after the date Borrower consummated the acquisition of Multiband Corporation or (y) October 31, 2014. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or the Intercreditor Agreement, and without any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan reduction in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)Commitment Amount, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ Borrower’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Multiband Field Services Inc)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xi) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, thereof and (yii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount principal installments of the Term Loans Loan in the inverse order of maturities in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31commencing on or after September 1, 20222010, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.21(c), subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (NYTEX Energy Holdings, Inc.)
Mandatory Prepayments. (ai) When If at any time the outstanding balances of the Revolving Loan exceed the Maximum Amount, Borrower sells shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess and shall release such cash collateral in accordance with Annex B upon the earlier of (A) termination of the Letter of Credit Obligations secured thereby or otherwise disposes (B) elimination of the excess requiring such cash collateral.
(ii) If an Event of Default shall have occurred and be continuing, then immediately upon receipt by any Credit Party of any Collateral resulting in Net Disposition Proceeds in excess cash proceeds of $500,000 in (A) any Asset Sale or (B) any other asset disposition to the extent the aggregate in any fiscal yearamount of such cash proceeds for all such other asset dispositions exceeds $5,000,000, other than Inventory in Borrower shall prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Loans in an amount equal to the Net Disposition Proceeds all proceeds, net of (1) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such saletransaction and payable by such Credit Party in connection therewith (in each case, such repayments paid to be made promptly but in no event more than three non-Affiliates), (2) transfer taxes, (3) Business Days following receipt amounts payable to holders of senior Liens on such net proceedsasset (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and until the date of payment, (4) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b1.3(c), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(biii) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no If an Event of Default shall have occurred and be continuing and Holdings or any of its Subsidiaries, including Borrower, issues Stock or Indebtedness, then no later than the Borrowing Agent shall have notified Agent within two (2) Business Days Day following the date of receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers thereof, Borrower shall prepay the outstanding amount Loans (and cash collateralize Letter of the Term Loans Credit Obligations) in an amount equal to twentyall such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to Affiliates in and required by Section 9.7 for connection therewith. Any such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.61.3(c).
Appears in 1 contract
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xy) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (yz) second, to the remaining Revolving Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Advances in an amount equal to twenty-five fifty percent (2550%) of Excess Cash Flow for each fiscal year beginning commencing with the fiscal year ending December 31June 30, 20222013, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied ratably to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofthereof until the aggregate amount of payments made with regard to the Term Loan pursuant to Sections 2.4 and 2.21 herein equals $1,000,000. In the event that the financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.21(b), subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(dc) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments Any prepayments of the Term Loan in the inverse order of the maturities thereof and (y) second, pursuant to the remaining Advances (including cash collateralization of this Section 2.21 shall not require any payments or premiums under Section 13.1 unless all Obligations relating to any outstanding Letters of Credit are prepaid in accordance with the provisions of full at such time at which point Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments 13.1 shall be applied applicable to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance prepayment of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Integrated Biopharma Inc)
Mandatory Prepayments. (a) When Upon receipt of any Borrower payment of principal (including payment in full of any Eligible Mortgage Loan) of any Eligible Mortgage Loan, such payment shall promptly be remitted to Agent, for the ratable benefit of the Lenders, as a payment of outstanding Revolving Advances.
(b) Whenever any Loan Party or any Subsidiary of any Loan Party either (i) issues any Equity Interests for cash, or (ii) incurs any Indebtedness not otherwise expressly permitted in Section 7.9, or (iii) sells or otherwise disposes of any Collateral resulting Collateral, or (iv) suffers an insured loss in Net Disposition Proceeds respect of any Collateral, or (v) obtains any Extraordinary Receipts, then, except as otherwise provided in excess Section 4.11 in respect of $500,000 clause (iv) above, Loan Parties shall, except as set forth in the aggregate in any fiscal year(a) above, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Revolving Advances in an amount equal to the Net Disposition Proceeds net proceeds derived therefrom; i.e., gross proceeds thereof less any reasonable costs incurred by such Loan Party in connection with the receipt of such saleproceeds, such repayments prepayments to be made promptly but in no event more than three one (3l) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgent and Lenders. The foregoing shall not be deemed to be an implied consent to any such issuance, incurrence sale or disposition otherwise prohibited by the terms and conditions hereof. Such repayments proceeds shall be applied (x) first, to the outstanding principal installments of the Term Loan Revolving Advances in the inverse such order of the maturities thereofas Agent may determine (but subject to Section 12.2), and (y) secondwithout reduction, however, in Borrower’s ability to the remaining reborrow Revolving Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)terms hereof. Notwithstanding the foregoing, provided however that if no unless and until a Default or Event of Default has occurred and is continuing, Loan Parties may sell or otherwise dispose of Collateral not to exceed, in aggregate fair market value, the Materiality Threshold in the aggregate, in any Fiscal Year and retain such repayments shall be applied net proceeds solely to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to acquire replacement Collateral without making a mandatory prepayment under Section 2.20(a), hereunder so long as no Event (A) the fair market value of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent acquired Collateral is equal to or greater than the fair market value of the Collateral which was sold, (B) the acquired Collateral is purchased by such Loan Party within two ninety (290) Business Days following receipt days before or after the date of the sale of the Collateral, (C) the proceeds of such Net Disposition Proceeds sale are remitted to Agent to be held by Agent for the ratable benefit of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to Lenders, as security for the business payment of the Loan Parties and their SubsidiariesObligations until the replacement Collateral is acquired, then such Net Disposition Proceeds (D) the acquired Collateral shall be applied deemed to be acceptable Collateral by Agent in its Permitted Discretion and (E) the acquired Collateral shall be subject to Agent’s first priority security interest created hereunder, subject only to Permitted Encumbrances. If any Loan Party fails to meet any of the Revolving Advances and conditions set forth above, such Loan Party hereby authorizes Agent shall implement to apply the proceeds held by Agent as a reserve equal to prepayment of the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent manner set forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentabove.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit and Security Agreement (Sachem Capital Corp.)
Mandatory Prepayments. (a) When Following any Borrower sells issuance of debt obligations or otherwise disposes preferred stock of the Company or any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, its Subsidiaries (other than Inventory in Indebtedness of the Ordinary Course Company or any of Business or Dispositions otherwise its Subsidiaries permitted to be issued under Section 7.19.2), Borrowers shall repay the Advances in an amount equal to 100% of the Net Disposition Proceeds of such saledebt or preferred stock issuance shall be applied by the Company on the date of receipt thereof to the prepayment of the Term Loans. The provisions of this Section 5.6(a) shall not apply to one or more issuances of preferred stock of the Company the Net Proceeds of which (i) are deposited on the date of receipt and are retained, such repayments until applied in accordance with clause (ii) below, in an account with the Collateral Agent as Collateral for the benefit of the Secured Parties to be made promptly but secure the Obligations over which the Collateral Agent has the sole control and exclusive right of withdrawal (or otherwise are deposited in no event one or more than three deposit or securities accounts subject to control agreements legally effective to create a valid and perfected first priority continuing security interest in favor of the Collateral Agent for the benefit of the Secured Parties to secure the Obligations) and (3ii) Business Days are applied to pay, in whole or in part, the agreed consideration for one or more Permitted Acquisitions.
(b) Subject to paragraph (f) below, following the consummation of any Asset Sale by the Company or any of its Subsidiaries, in the case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any non-cash consideration obtained in connection with such net proceedsAsset Sale, and until an amount equal to 100% of the Net Proceeds of such Asset Sale shall be applied by the Company on the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, receipt thereof to the outstanding principal installments prepayment of the Term Loan in Loans. Notwithstanding the inverse order of the maturities thereofforegoing, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and shall be continuing and at the Borrowing Agent time of such Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall have notified Agent not constitute Net Proceeds except to the extent that within two (2) Business Days following 360 days of receipt of such Net Disposition Proceeds proceeds, they have neither been reinvested in productive assets of the applicable Loan Party’s a kind then used or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds usable in fixed or capital assets or other assets useful to the business of the Loan Parties Company and their Subsidiaries, then its Subsidiaries nor contractually committed (and any such Net Disposition Proceeds shall be proceeds not applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount contractual commitments at the time required shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent Net Proceeds to any Disposition or other transaction prohibited by the terms and conditions of be applied as set forth in this Agreement or any Other DocumentSection) to be used for such purposes, at which time all such proceeds shall be deemed to be Net Proceeds.
(c) Borrowers By April 30 of each year (commencing April 30, 2009), the Company shall prepay the outstanding an aggregate principal amount of the Term Loans in an amount equal to twenty-five percent (25%) the Applicable ECF Percentage of Excess Cash Flow for each the immediately preceding fiscal year. As used in this paragraph (c), the term “Applicable ECF Percentage” for any fiscal year beginning with means (A) 50.0% if the Secured Leverage Ratio as of the last day of and for such immediately preceding fiscal year ending December 31was equal to or greater than 2.50 to 1.00, 2022, payable upon delivery (B) 25.0% if the Secured Leverage Ratio as of the financial statements to Agent referred to in last day of and required by Section 9.7 for such immediately preceding fiscal year but in any event not later was less than one hundred twenty 2.50 to 1.00 and equal to or greater than 2.00 to 1.00 and (120C) days after 0.0% if the end of each such fiscal year, which amount shall be applied to the outstanding principal installments Secured Leverage Ratio as of the Term Loan in the inverse order last day of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver and for such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per immediately preceding fiscal year or (iii) used was less than 2.00 to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof1.00.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. (a) When Upon receipt by any Borrower sells or otherwise disposes Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral resulting Collateral, the Borrower shall immediately prepay the Loans (or provide cash collateral in Net Disposition Proceeds in excess respect of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course Letters of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds 100% of such sale, Net Cash Proceeds. Any such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments mandatory prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with clause (b) below.
(b) Subject to the provisions of Section 3.2(b2.13(g) (Payments and Computations), provided however that any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, if no Default or an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% of such repayments Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, including in connection with the reduction described in Section 2.5 (Reduction and Termination of the Revolving Credit Commitments) on the date after the last day of the Amendment No. 5 Incremental Period, the Borrower shall be applied forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrower shall provide cash collateralize collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 103% of such excess.
(d) The Borrower hereby irrevocably waives the right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as provided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations related and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees to apply such funds and the Borrower consents to such application. If (i) following such application, (ii) outside of a Liquidity Event Period or (iii) after all Letters of Credit last) in such order as Agent may determineshall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
there are no Loans outstanding and no other Obligations that are then due and payable (b) Notwithstanding the foregoingand, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no if an Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiariescontinuing, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have cash collateral has been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans provided in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery 103% of the financial statements Letter of Credit Obligations in the manner required in Section 9.3 (Actions in Respect of Letters of Credit)), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to Agent referred be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto). AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(e) At any time during a Liquidity Event Period, subject to Section 2.9(d) all amounts collected in and required by the Concentration Account pursuant to Section 9.7 for such fiscal year but in any event not later than one hundred twenty 7.11 (120Cash Management) days after the end of each such fiscal year, which amount shall be applied on each Business Day by the Administrative Agent first, to prepay the outstanding principal installments Loans (including Swing Loans) and then, if an Event of the Term Loan in the inverse order Default shall have occurred and be continuing, to provide cash collateral for any Letter of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit Obligations in an amount equal to one hundred percent (100.00%) 103% of such cash proceeds Letter of Credit Obligations in the case manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. Following such application, the Administrative Agent shall, subject to Section 2.9(d) cause any remaining funds in the Concentration Account to be paid at the written direction of the Borrower (or, in the absence of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstdirection, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bBorrower or another Person lawfully entitled thereto), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received If, at any time, the aggregate amount of the Lenders’ Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments as then in effect by Borrowers greater than 5% for five consecutive Business Days solely due to fluctuations in currency exchange rates, the Borrower shall within one Business Day after the receipt of written notice thereof from the Administrative Agent repay Loans (or Agent provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (iActions in Respect of Letters of Credit) under any insurance policy on account in an amount equal to 103% of damage or destruction the Letter of any assets or property of any BorrowersCredit Obligations) in a principal amount such that, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6after giving effect to such repayment, the Revolving Credit Outstandings do not exceed the aggregate Revolving Credit Commitments.
Appears in 1 contract
Mandatory Prepayments. Subject in each case to the Intercreditor Agreement:
(a) When Subject to Section 7.1 hereof, upon the receipt by any Borrower sells Loan Party of the proceeds of any sale or otherwise disposes other disposition of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, (other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business), Borrowers shall repay prepay the Advances in an amount equal to the Net Disposition Cash Proceeds of such salesale or other disposition, such repayments prepayments to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsNet Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided, that such Net Cash Proceeds shall not be required to be applied as a mandatory prepayment on such date to the extent that (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) Loan Parties have delivered an officers’ certificate to the Agent on or prior to such date stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets within six (6) months following the date of such disposition (which officers’ certificate shall set forth the estimates of the proceeds to be so expended); provided further, that if all or any portion of such Net Cash Proceeds is not so reinvested within such six (6)-month period, such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.20(a); provided, further, that if the property subject to such disposition constituted Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this Section 2.20(a) shall be made subject to the Lien created pursuant to this Agreement in favor of the Agent for the benefit of the Lenders in accordance with Section 6.11. The foregoing shall not be deemed to be implied consent to any such sale or other disposition otherwise prohibited by the terms and conditions hereof. Such repayments prepayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof).
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowersthe Loan Parties or the issuance of any Equity Interests by any Loan Party, the Borrowers shall, no later than three one (31) Business Days Day after the receipt by Borrowers such Loan Party of (i) the cash proceeds Net Cash Proceeds from any such issuance or incurrence of IndebtednessIndebtedness or (ii) the Net Cash Proceeds of any issuance of Equity Interests, repay as applicable, prepay the Advances in an amount equal to (x) one hundred percent (100.00100%) of such cash proceeds Net Cash Proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof Indebtedness and (y) second, to one hundred percent (100%) of such Net Cash Proceeds in the remaining Advances (including cash collateralization case of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests Such prepayments shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(fc) All proceeds Net Cash Proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property property, or (iii) under any business interruption insurance, in each case, shall be applied in accordance with Section 6.66.6 hereof; provided, that, with respect to any Net Cash Proceeds received as a result of the occurrence of an event described in the immediately preceding clauses (i) and (ii) such Net Cash Proceeds shall not be required to be applied as a mandatory prepayment on such date to the extent that (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) Loan Parties have delivered an officers’ certificate to the Agent on or prior to such date stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets within six (6) months following the date of such casualty event (which officers’ certificate shall set forth the estimates of the Net Cash Proceeds to be so expended); provided further, that if all or any portion of such Net Cash Proceeds is not so reinvested within such six (6)-month period, such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.20(c); provided, further, that if the property subject to such casualty event constituted Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this Section 2.20(c) shall be made subject to the Lien created pursuant to this Agreement in favor of the Agent for the benefit of the Lenders in accordance with Section 6.11.
(d) Not later than three (3) Business Days following the receipt thereof, Borrowers shall prepay the Advances in an amount equal to the Arbitration Recovery Net Cash Proceeds. Such prepayments shall be applied to the Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Notwithstanding the provisions of Section 3.2(b)2.1 hereof:
(a) Subject to subsection (c) below, provided however that if no Default upon the receipt by any Borrower or Event any of Default has occurred its Subsidiaries of any Extraordinary Receipts (excepting therefrom any proceeds of Non-Real Property Collateral, to the extent payable and is continuing, such repayments shall be applied paid to cash collateralize any Obligations related the Revolver Agent for application to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances the Revolver Loan Debt in accordance with the terms hereof.of the Intercreditor Agreement and subject thereto), Borrowers shall pay to Agent an amount equal to one hundred percent (100%) of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts, which payments shall be applied to the Obligations in the manner specified in subsection (f) below;
(b) Notwithstanding Upon the foregoingsale or disposition of any Collateral by any Borrower or any of its Subsidiaries as permitted in clauses (ii) and (vi) of Section 7.1(b) hereof (excepting therefrom any proceeds of Non-Real Property Collateral, to the extent payable and paid to the Revolver Agent for application to the Revolver Loan Debt in accordance with respect the terms of the Revolver Loan Agreement and subject to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(athe provisions of the Intercreditor Agreement in regard thereto), so long as Borrowers shall pay to Agent an amount equal to one hundred percent (100%) of the Net Cash Proceeds received by any such Borrower or Subsidiary in connection therewith, which payments shall be applied to the Obligations in the manner specified in subsection (f) below;
(c) Notwithstanding subsection (a) above, if any of the Equipment or Real Property is damaged or physically destroyed or otherwise suffers a casualty, upon the written request of Borrowing Representative, which shall be made not less than five (5) Business Days after such casualty occurs, Agent shall release to Borrowing Representative Extraordinary Receipts consisting of proceeds from insurance policies covering such damage, destruction or casualty that are received by Agent pursuant to Section 4.11 hereof or otherwise, to the extent a Borrower elects to apply such Extraordinary Receipts to the repair, refurbishment or replacement of the Equipment or Real Property that has been damaged, destroyed or otherwise suffered a casualty, provided, however, that, all of the following conditions are satisfied: (i) no Default or Event of Default shall have occurred and be continuing and continuing, (ii) the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds amount of the applicable Loan Party’s insurance proceeds (together with any deductible to be satisfied by a Borrower) are sufficient, in Agent's good faith determination, to permit such repair, refurbishment or its Subsidiary’s election replacement to reinvest all be made in a satisfactory manner, (iii) such proceeds shall be used solely to repair, refurbish or replace the Equipment or Real Property that has been damaged, destroyed or suffered casualty (free and clear of any portion security interests, Liens, claims or encumbrances), (iv) such repair, refurbishment or replacement shall be commenced by Borrowers as soon as is reasonably practicable after such damage, destruction or casualty has occurred and shall be diligently pursued by Borrowers to satisfactory completion, and (v) the repair, refurbishment or replacement to which such proceeds are applied shall cause the value of the Equipment or Real Property that is being repaired, refurbished or replaced to be not less than the value thereof prior to such Net Disposition Proceeds in fixed or capital assets damage, destruction or other assets useful to the business of the Loan Parties and their Subsidiariescasualty occurring; provided, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to further, however, that the amount of such Net Disposition Proceeds Extraordinary Receipts that may be released to Borrowers in respect of any such damage, destruction or other casualty loss for the repair, refurbishment or replacement of Equipment or Real Property shall not exceed the Materiality Threshold. Pending any release of such Extraordinary Receipts to Borrowing Representative pursuant to Section 2.1(a)(y)(vithis subsection (c), Agent shall hold such Extraordinary Receipts as cash Collateral. Borrowers may Any Extraordinary Receipts applied to repair, refurbish or replace Equipment or Real Property pursuant to and in accordance with this subsection (c) shall not be deemed Capital Expenditures for purposes of this Agreement.
(d) Notwithstanding subsection (b) above, upon the written request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount Borrowing Representative, which shall be released made not less than ten (10) Business Days after any sale or other disposition of Collateral permitted by clauses (ii) and (vi) of Section 7.1(b) has occurred, Borrowers shall be available entitled to Borrowers as a Revolving Advanceuse, so long as and Agent shall release to Borrowers, such Net Cash Proceeds in an amount not to exceed, the Materiality Threshold, to purchase Equipment or Real Property used or useful in Borrowers' business, provided, however, that all of the following conditions are satisfied: (i) Borrowers no Default or Event of Default shall have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to occurred and be madecontinuing, (ii) all conditions any such Net Cash Proceeds not so used within one hundred eighty (180) days after release shall be immediately remitted to funding sent forth Agent for application to the Obligations as provided in Section 8.2 or 8.3 2.3(f) below (as applicable) excepting therefrom any proceeds of this Non-Real Property Collateral, to the extent payable and paid to the Revolver Agent for application to the Revolver Loan Debt in accordance with the terms of the Intercreditor Agreement have been satisfied and subject thereto), and (iii) Borrowers agree to use Agent, for itself and the proceeds benefit of the Revolving Advances to pay the cost Lenders, shall have a valid and perfected first priority Lien on and security interest in such replacement or new Equipment or Real Property. Pending any release of such cost of reinvestmentNet Cash Proceeds to Borrowing Representative pursuant to this subsection (d), such proceeds received by Agent shall continue to be held as cash Collateral. The foregoing Any Net Cash Proceeds reinvested by a Borrower pursuant to and in accordance with this subsection (d) shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions Capital Expenditures for purposes of this Agreement or any Other DocumentAgreement.
(ce) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal Upon delivery to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery Agent of the financial statements to Agent referred to in and required by Section 9.7 10.6 for such fiscal year each Fiscal Year of the Borrowers (commencing with the first Fiscal Year ending subsequent to the Closing Date) but in any event not later than one hundred twenty (120100) days after the end of each such fiscal yearFiscal Year, Borrowers shall pay to Agent fifty percent (50%) of Excess Cash Flow for such Fiscal Year, which amount payments shall be applied to the outstanding principal installments of the Term Loan Obligations in the inverse order of the maturities thereofmanner specified in subsection (f) below. In the event that the aforesaid financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)Section, subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights of Agent or Lenders any Lender or may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(f) Proceeds of mandatory prepayments made pursuant to subsections (a), (b), (d) In and (e) above shall be applied by Agent, when received: first, to pay any Obligations then due and owing in respect of the event of any issuance or other incurrence of Indebtedness Term Loan A (other than Permitted Indebtedness) by Borrowersprincipal); second, Borrowers shall, no later than three (3) Business Days after to repay the receipt by Borrowers principal amount of the cash proceeds from any Term Loan A, with such issuance or incurrence of Indebtedness, repay the Advances in an amount equal prepayment to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal then remaining installments of the Term Loan A in the inverse reverse order of their respective maturities (beginning with the maturities thereof and (y) secondfinal payment); third, to the remaining Advances Revolver Loan Agent for application to the Revolver Loan Debt to the extent required pursuant to the Revolver Loan Agreement and in the manner set forth therein; fourth, to pay any Obligations then due and owing in respect of the Term Loan B (including cash collateralization other than principal); fifth, to repay the principal amount of all Obligations relating the Term Loan B, and, last, any remainder thereof shall be paid to Borrowers or as Borrowing Representative directs.
(g) Nothing contained in this Section 2.3 shall be deemed to be a consent by Agent and Lenders to the sale or disposition of any outstanding Letters of Credit Collateral except as expressly permitted in accordance with the provisions of Section 3.2(b), provided however that if no Default or this Agreement.
(h) If an Event of Default has occurred and is continuing, such repayments at the option of Agent, or at the direction of the Required Lenders, any Extraordinary Receipts or Net Cash Proceeds from any sale or other disposition of any Equipment or Real Property shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) applied, instead, as provided in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofSection 12.2.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Loan and Security Agreement (Lexington Precision Corp)
Mandatory Prepayments. In addition to any prepayment required in accordance with Section 9.02 as a result of an Event of Default hereunder, the Borrowers shall repay or prepay the Loans as follows:
(ai) When within five (5) Business Days following the earlier of (x) any Borrower’s receipt of control over the funds collateralizing the Existing Letter of Credit and (y) August 31, 2026 (or such later date as the Agent may agree in writing in its sole discretion), the Borrower Agent shall pay Agent for the benefit of the Lenders the full amount of such funds (net of documented reasonable out of pocket costs and expenses payable to non-Affiliates and incurred in connection with the collection of such proceeds);
(ii) immediately upon discovery by any Borrower sells or otherwise disposes notice to Borrower Agent that any of any Collateral resulting the lending limit set forth in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, Section 2.01(a) has been exceeded (other than Inventory in the Ordinary Course solely as a result of Business or Dispositions otherwise Protective Advances and Overadvances permitted under Section 7.12.10), Borrowers shall pay Agent for the benefit of the Lenders an amount sufficient to reduce the outstanding principal balance of the Loans, to the applicable maximum allowed amount, and such amount shall become due and payable by Borrowers without the necessity of a demand by Agent or any Lender;
(iii) the Borrowers shall repay the Advances Loans on February 20, 2026, in an a principal amount of the Loans equal to $5,000,000; and
(iv) on the Net Disposition Proceeds Maturity Date, the Borrowers shall pay the entire outstanding principal amount of the Loans, together with all accrued and unpaid interest thereon and all fees and Lender Group Expenses payable by Borrowers hereunder. Together with each prepayment under this Section 2.05(b), the Borrowers shall pay any accrued and unpaid interest on the principal amount of the Loans prepaid and the prepayment premium, if any, with respect thereto. Notwithstanding the terms of the Fee Letters to the contrary, no prepayment premium shall be payable with respect to any prepayment under Section 2.05(b)(i) or (iii).
9. Section 2.10(a) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(a) Subject to the limitations set forth below and notwithstanding anything to the contrary in this Agreement, Agent is authorized by Borrowers and the Lenders, from time to time, to make Loans to Borrowers, on behalf of all Lenders, which Agent, in its Permitted Discretion deems necessary or desirable to, among others:
(i) preserve or protect the Collateral, or any portion thereof (such saleLoans, such repayments “Protective Advances”);
(ii) enhance the likelihood of, or maximize the amount of, repayment of the Loans or other Obligations;
(iii) permit the Borrowers’ redemption repayment, repurchase or other retirement of the Senior Convertible Notes together with accrued and unpaid interest thereon; or
(iv) to pay any other amount chargeable to or required to be made promptly but in no event more than three paid by the Loan Parties pursuant to the terms of this Agreement, including payments of reimbursable expenses (3including fees and Lender Group Expenses) Business Days following receipt and other sums payable under the Loan Documents; provided that (A) the aggregate amount of such net proceedsProtective Advances plus Overadvances outstanding at any time shall not at any time exceed (1) on or after the Amendment No. 2 Effective Date and until February 20, 2026, $25,000,000, (2) from February 20, 2026 and until the date of paymentthat a mandatory prepayment is required under Section 2.05(b)(i), $20,000,000, (3) from the date such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by mandatory prepayment is required until the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments second anniversary of the Term Loan in Closing Date, $10,000,000 and (4) following the inverse order second anniversary of the maturities thereofClosing Date, $5,000,000, and (yB) second, in no event shall the making of any Protective Advance cause the aggregate outstanding amount of Loans to exceed the Aggregate Commitment. Protective Advances may be made even if the conditions precedent to Borrowing set forth in Section 4.01 have not been satisfied. Notwithstanding anything to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit contrary set forth in accordance with the provisions of Section 3.2(b)2.02, provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject request the Lenders to Borrowers’ ability make a Loan to re-borrow Revolving Advances repay a Protective Advance. At any other time Agent may require the Lenders to fund their risk participations described in accordance with the terms hereof.
Clause (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful below.
10. Annex A to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied Credit Agreement is hereby amended by Agent replacing it with Annex A to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAmendment.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (BuzzFeed, Inc.)
Mandatory Prepayments. (a) When Borrower or any Borrower Restricted Subsidiary sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory in the Ordinary Course ordinary course of Business business, or Dispositions otherwise permitted under Section 7.1a Casualty Event has occurred, Borrowers then, unless a Reinvestment Notice shall be delivered in respect thereof within ten (10) days of Borrower’s or such Loan Party’s receipt of proceeds (including insurance proceeds, awards, or compensation) of such sale or other disposition or Casualty Event, Borrower shall repay the Advances made to Borrower in an amount equal to the Net Disposition Proceeds of such saleCash Proceeds, such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such Net Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; 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 Advances and other amounts as set forth in this Section 2.14(a); and provided further, that so long as no Default or Event of Default shall exist or would result therefrom, and such Net Cash Proceeds of such a sale, disposition, or Casualty Event do not exceed $25,000,000 in any single transaction or series of related sales or dispositions, then no such prepayment shall be required. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the Advances in such order as Agent may determine, subject to ▇▇▇▇▇▇▇▇’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(b) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by Agent to the Advances in such order as Agent may determine, subject to ▇▇▇▇▇▇▇▇’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(c) [Reserved].
(d) [Reserved]. 55
(e) If any Loan Party receives any proceeds from the issuance or incurrence of any Indebtedness (other than Permitted Indebtedness), Borrower shall repay the Advances made to Borrower in an amount equal to the net proceeds of such issuance or incurrence (i.e., gross proceeds less the reasonable costs of such issuance or incurrence), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or issuance otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining other Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party▇▇▇▇▇▇▇▇’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Loan and Security Agreement (Veeco Instruments Inc)
Mandatory Prepayments. (a) When Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising from an Asset Sale or Property Loss Event with respect to Collateral, the Borrower sells shall immediately prepay the Loans (or otherwise disposes provide cash collateral in respect of any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds 100% of such saleNet Cash Proceeds. Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising from an Equity Issuance or Debt Issuance, such repayments the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to be made promptly but in no event more than three (3) Business Days following receipt 100% of such net proceeds, and until the date of payment, Net Cash Proceeds. Any such proceeds shall be held in trust for Agent. The foregoing shall not be deemed mandatory prepayment pursuant to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments this clause (a) shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with clause (b) below.
(b) Subject to the provisions of Section 3.2(b2.13(g) (Payments and Computations), any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 105% of such Letter of Credit Obligations in the manner set forth in Section 7.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein; provided, however, no application shall be required unless at the time of the receipt of the applicable Net Cash Proceeds, a Collateral Availability Period shall be in effect or a Default or Event of Default shall have occurred and be continuing or would result therefrom. If subsequent to providing cash collateral for any Letter of Credit Obligation pursuant to this clause (b), no Collateral Availability Period shall be in effect and no Default or Event of Default shall have occurred and be continuing, then such cash collateral shall be released to the Borrower. No repayment of Revolving Loans and Swing Loans required to be made pursuant to this clause (b) shall result in a permanent reduction of the Revolving Credit Commitments.
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 7.3 (Actions in Respect of Letters of Credit) in an amount equal to 105% of such excess. If subsequent to providing cash collateral for any Letter of Credit Obligation pursuant to this clause (c), the Maximum Credit exceeds the aggregate principal amount of Revolving Credit Outstandings at such time and no Default or Event of Default shall have occurred and be continuing, then such cash collateral shall be released to the Borrower.
(d) The Borrower hereby irrevocably waives the right to direct, during a Collateral Availability Period or if a Default or an Event of Default has occurred and is continuing, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Collateral Availability Period or after the occurrence and during the continuance of a Default or an Event of Default, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as provided however that if no in Section 2.13(g) (Payments and Computations) and clause (b) above, apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and third to any other Obligation then due and payable. The Administrative Agent agrees so to apply such funds and the Borrower consents to such application. Notwithstanding the foregoing, unless a Collateral Availability Period is in effect or a Default or Event of Default has occurred and is continuing, any funds on deposit in the Cash Collateral Account may be paid at the written direction of the Borrower (or, in the absence of such repayments direction, to the Borrower or another Person lawfully entitled thereto); provided, however, that in the event the Revolving Credit Outstandings exceed $40,000,000 at any time, all available funds in excess of $20,000,000 in the Cash Collateral Account or in any Approved Deposit Account or Control Account shall be applied on a daily basis as provided in first through third above (and, if in an Approved Deposit Account or Control Account, the Borrower shall cause such excess to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful delivered to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Administrative Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vifor application). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit Agreement (Tekni Plex Inc)
Mandatory Prepayments. (a) When Upon receipt of any payment of principal (including payment in full of any Eligible Mortgage Loan) of any Eligible Mortgage Loan (including Borrower’s share of any payments made in respect of Designated Mortgaged Property or Designated Participation Loans), such payment shall promptly be remitted to Agent , for the ratable benefit of the Lenders, as a payment of outstanding Advances. All proceeds of (i) Designated Mortgaged Property remaining after satisfaction of any Designated Mortgages Liens recorded thereon and (ii) Borrower’s share of Mortgaged Property subject to a Designated Participation Loan or otherwise remaining after satisfaction of any participation interest shall be remitted to Agent, for the ratable benefit of the Lenders, for application to the outstanding Advances.
(b) Whenever Borrower either (i) issues any Equity Interests for cash, or (ii) incurs any Indebtedness not otherwise expressly permitted in Section 7.9, or (iii) sells or otherwise disposes of any Collateral resulting Collateral, or (iv) suffers an insured loss in Net Disposition Proceeds respect of any Collateral, or (v) obtains any Extraordinary Receipts, then, except as otherwise provided in excess Section 4.11 in respect of $500,000 clause (iv) above, Borrower shall, except as set forth in the aggregate in any fiscal year(a) above, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds derived therefrom; i.e., gross proceeds thereof less any reasonable costs incurred by Borrower in connection with the receipt of such saleproceeds, such repayments prepayments to be made promptly but in no event more than three one (3l) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgent and Lenders. The foregoing shall not be deemed to be an implied consent to any such issuance, incurrence sale or disposition otherwise prohibited by the terms and conditions hereof. Such repayments proceeds shall be applied (x) first, to the outstanding principal installments of the Term Loan Revolving Advances in the inverse such order of the maturities thereofas Agent may determine (but subject to Section 12.2), and (y) secondwithout reduction, however, in Borrower’s ability to the remaining reborrow Revolving Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)terms hereof. Notwithstanding the foregoing, provided however that if no unless and until a Default or Event of Default has occurred and is continuing, such repayments shall be applied Borrower may sell or otherwise dispose of Collateral not to cash collateralize any Obligations related to outstanding Letters of Credit last) exceed, in such order as Agent may determineaggregate fair market value, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances Materiality Threshold in the amount of the Net Disposition Proceeds (or aggregate, in any Fiscal Year and retain such portion thereof) net proceeds solely to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as acquire replacement Collateral without making a Revolving Advance, mandatory prepayment hereunder so long as (iA) Borrowers have sufficient Undrawn Availability (after giving effect to the release fair market value of the reserve for such amount) acquired Collateral is equal to cause such Revolving Advances to be madeor greater than the fair market value of the Collateral which was sold, (iiB) all conditions to funding sent forth in Section 8.2 the acquired Collateral is purchased by Borrower within ninety (90) days before or 8.3 after the date of the sale of the Collateral, (as applicableC) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of such sale are remitted to Agent to be held by Agent for the Revolving Advances to pay ratable benefit of the cost Lenders as security for the payment of such cost of reinvestment. The foregoing the Obligations until the replacement Collateral is acquired, (D) the acquired Collateral shall not be deemed to be implied consent to any Disposition or other transaction prohibited acceptable Collateral by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretiondiscretion and (E) the acquired Collateral shall be subject to Agent’s first priority security interest created hereunder, within such ten (10) day period, may request an appraisal of Equipment and Real Property subject only to determine if the then outstanding balance Permitted Encumbrances. If Borrower fails to meet any of the Term Loan exceeds conditions set forth above, Borrower hereby authorizes Agent to apply the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If proceeds held by Agent does not order an appraisal as a prepayment of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan Advances in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofmanner set forth above.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Sources: Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Without limiting the requirements of Section 7.5 hereof regarding the consent of Majority Lenders to sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any Collateral resulting in Net Disposition Proceeds in excess sale of $500,000 property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the aggregate in business of Restricted Persons) by any fiscal year, Restricted Person (other than Inventory in the Ordinary Course a sale of Business or Dispositions otherwise property permitted under Section 7.17.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2.7(a) referred to as the "Collateral Period"). If any consideration consists of an instrument or security, Borrowers the Collateral Period shall, with respect to each amount of cash received in respect thereof, continue until ninety (90) days following such Restricted Person's receipt of such cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by Borrower. During each Collateral Period, Borrower may propose to invest such proceeds in other property subject to the approval of Majority Lenders, and shall repay thereafter invest such proceeds in such property so approved by Majority Lenders. At the Advances in end of each Collateral Period or, if an investment is so proposed and approved during such Collateral Period, within one hundred-eighty (180) days after such proposed investment has been so approved by Majority Lenders, any such proceeds which have not been so invested by Borrower shall be applied to the reduction of the outstanding principal balance of the Loans at such time, and the Commitment shall be reduced by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be prepayment applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofLoans.
(b) Notwithstanding If at any time the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise Facility Usage exceeds the Commitment (whether due to a prepayment under Section 2.20(areduction in the Commitment in accordance with this Agreement, or otherwise), so long as no Event of Default Borrower shall have occurred and be continuing and immediately upon demand prepay the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds principal of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount at least equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.such
Appears in 1 contract