Mandatory Prepayments. (i) [Reserved]. (ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%). (iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below. (iv) Notwithstanding anything in this Section 2.11(b) to the contrary: (A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and (C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above. (v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 4 contracts
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries (i) receives any Net Cash Proceeds arising from any Debt Issuance, Equity Issuance or Asset Sale consummated on or after the issuance Effective Date or incurrence of Indebtedness by (ii) enters into definitive documentation for any Qualifying Term Loan Facility, then the Borrower or any of its Restricted Subsidiaries after shall prepay the Closing Date outstanding 364-Day Tranche Loans (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(pthereof), (Bi) Incremental Term Loans incurred to refinance all or a portion in the case of any Class of Term Loans pursuant to Section 2.22Debt Issuance, (C) Replacement Term Loans incurred to refinance all Equity Issuance or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z)Asset Sale, in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds not later than two Business Days following the receipt by the Borrower or such Subsidiary of such Net Cash Proceeds and (ii) in the case of any Qualifying Term Loan Facility, in an amount equal to prepay the outstanding principal amount commitments in respect of such Qualifying Term Loan Facility immediately upon effectiveness of the relevant Class or Classes of Term Loans definitive documentation in accordance respect thereof; provided, that any such Net Cash Proceeds with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) respect to the contrary:
(A) the Borrower any Asset Sale shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above applied to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant such Net Insurance/Condemnation Cash Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result reinvested in, or would reasonably applied to the replacement or repair of assets to be expected to result used in, a material risk the business of personalany of the Borrower and its Subsidiaries within 180 calendar days of receipt thereof; provided, civil or criminal liability for further, that if any officer, director, employee, manager, member of management or consultant portion of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise Net Cash Proceeds that are subject to the relevant Subject Proceedsimmediately preceding proviso are not so reinvested within such 180 calendar day period, such unused portion shall be applied immediately at the end of such period to the 364-Day Tranche Loans. The Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than within two (2) Business Days after such distributionof receipt) applied to notify the repayment Administrative Agent of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated receipt by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign such Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay such Net Cash Proceeds and/or the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to effectiveness of such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) abovedefinitive documentation, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at will promptly notify each Lender of its receipt of each such notice. All prepayments of Borrowings under this Section 2.12 shall be subject to Section 2.17, but shall otherwise be without premium or prior to penalty, and shall be accompanied by accrued and unpaid interest on the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required principal amount to be made by prepaid to but excluding the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) date of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6payment.
Appears in 3 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Upon the fifth Business Day following the receipt of Net Proceeds in respect occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, the events set forth in each case, in excess Section 2.1 of $15,000,000 in any Fiscal Yearthe Common Agreement, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) required to prepay the outstanding Advances, as set forth in Section 2.1 of the Common Agreement. All such prepayments shall be made in the manner set forth in Section 2.1 of the Common Agreement, together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 8.5(c). Amounts prepaid pursuant to this Section 2.6 and Section 2.1 of Term Loans then subject the Common Agreement may not be reborrowed. Amounts prepaid pursuant to prepayment requirements this Section 2.6 and Section 2.1 of the Common Agreement shall be applied on a pro rata basis across maturities to the Advances held by each Lender, unless otherwise specified in Section 2.1 of the Common Agreement.
(the “Subject Loans”b) in accordance with clause On each Test Date (vi) as defined below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and ), the Borrower does not shall notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any Gross Principal Due (as defined below) and the Cash Resources Available (as defined below), in each case as of its Restricted Subsidiariessuch Test Date. If, thenon either Test Date, the Gross Principal Due exceeds the Cash Resources Available, in each case as of such Test Date, the Borrower shall not be required to make a mandatory prepayment under this clause shall, no later than forty-five (ii45) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period applicable Test Date (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration “Mandatory Prepayment Date”) prepay all of the applicable periodAdvances of all of the Lenders, provided that any Lender (each, a “Waiving Lender”) may, on or before the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided thatMandatory Prepayment Date, with respect to this clause (I), at the Borrower’s election by written notice to the Borrower (with a copy to the Administrative Agent, expenditures and investments occurring prior ) (a “Mandatory Prepayment Waiver Notice”) waive the requirement pursuant to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other this Section 2.6(b) for such mandatory prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness the Advances of such Subsidiary)Waiving Lender, thenwhereupon the Borrower shall have no obligation to prepay the Advances of such Waiving Lender. Immediately after receipt thereof, the Administrative Agent shall provide a copy of each Mandatory Prepayment Waiver Notice to each Lender. On the Mandatory Prepayment Date, the Borrower shall not prepay the Advances of all Lenders (other than each Waiving Lender). All such prepayments shall be required made to make a mandatory prepayment under this clause (ii) the Lenders entitled thereto pro rata and shall otherwise be paid in respect the manner set forth in Section 2.1 of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales Common Agreement. Such prepayments shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event made together with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior accrued interest to the date of such required prepayment is less than or equal to 0.75 to 1.00 on the principal amount prepaid and greater than 0.50 to 1.00 (together with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans amounts owing pursuant to Section 6.01(p), (B8.5(c) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans prepayment. Amounts prepaid pursuant to this Section 2.11(b2.6(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall may not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to reborrowed. For the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower purposes of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.2.6(b):
Appears in 3 contracts
Sources: Credit Agreement, Tranche D 1 Credit Agreement (Digicel Group LTD), Tranche E (Euro) Credit Agreement (Digicel Group LTD)
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (iiexcluding any Indebtedness incurred in accordance with Section 7.2) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, shall be incurred by the Borrower shall apply or any Restricted Subsidiary, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied not later than one Business Day after the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess toward the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements as set forth in Section 2.12(d).
(b) Unless the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and Required Prepayment Lenders shall otherwise agree, if on any date the Borrower does not notify or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in writing prior to respect thereof, such Net Cash Proceeds shall be applied not later than five Business Days after such date toward the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2010, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments, and all optional prepayments of Term Loans during such fiscal year (other than optional prepayments pursuant to Section 2.11(c)), in each case other than to the extent any period during such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the scheduled expiration of the Borrower’s existence financial statements referred to in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”Section 6.1(a), 100% of for the Net Proceeds of all ordinary course and non-ordinary course asset sales fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to repay the prepayment of the Term Loans or in accordance with Section 2.18(b) until paid in full. In connection with any Asset Financing Facility secured directly or indirectly mandatory prepayments by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required the Term Loans pursuant to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing Section 2.12, such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable 2.12(e), then, with respect to such Foreign Subsidiary, a “Restricted Amount”)mandatory prepayment, the amount that the Borrower of such mandatory prepayment shall be required applied first to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided Term Loans that are ABR Loans to the full extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise thereof before application to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At that are Eurocurrency Loans in a manner that minimizes the Borrower’s option, amount of any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans payments required to be made by the Borrower pursuant to Section 2.11(b), 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to decline all (but not a portion) of its Applicable Percentage the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to Tranche B Term Loans (such declined amountsamount, the “Declined ProceedsTranche B Prepayment Amount”), in which case such Declined Proceeds may be retained by at any time when Tranche A Term Loans remain outstanding, the Borrower and will be added will, in lieu of applying such amount to the Available Amount prepayment of Tranche B Term Loans as set forth provided in clause paragraph (a)(vd) of above, on the definition thereof; provided thatdate specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (which, for the avoidance of doubt, no includes each New Term Lender) a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. Each Tranche B Term Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of its Tranche B Prepayment Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York time) one Business Day after such Tranche B Term Lender’s receipt of the Prepayment Option Notice (which notice shall specify the principal amount of the Tranche B Prepayment Amount to be rejected by such Lender); provided that any Tranche B Term Lender’s failure to so reject such Tranche B Prepayment Amount shall be deemed an acceptance by such Tranche B Term Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans pursuant held by such Tranche B Term Lender. On the Mandatory Prepayment Date, the Borrower shall (i) pay to Section 6.01(p), (x) Incremental the relevant Tranche B Term Loans incurred Lenders the aggregate amount necessary to refinance all or a prepay that portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the outstanding relevant Term Loans in accordance with the requirements respect of Section 9.02(c), and/or which such Lenders have (zor are deemed to have) Incremental Equivalent Debt incurred to refinance all or a portion of the accepted prepayment as described above and (ii) prepay outstanding Tranche A Term Loans in accordance with an aggregate amount equal to the requirements amounts declined by Tranche B Term Lenders as described above; provided that, upon the making of Section 6such prepayments, any amount remaining unapplied (i.e., after the payment in full of the Tranche A Term Loans) shall be returned to the Borrower.
Appears in 3 contracts
Sources: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary)Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 70.0% and greater than 0.50 to 1.00 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 64.5% and greater than 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.050.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 10025.0%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofBorrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Mandatory Prepayments. The Borrower shall make the following mandatory prepayments (without premium or penalty subject, in the case of clause (v) of this Section 2.10(b) (Prepayment of Loans), to Section 2.10(d) (Prepayment of Loans)):
(i) [Reserved]In the event and on each occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the Borrower shall prepay Revolving Borrowings (or, if no such Revolving Borrowings are outstanding, deposit Cash Collateral in the Cash Collateral Account pursuant to Section 2.04(g) (Letters of Credit)), in an aggregate amount necessary to eliminate such excess.
(ii) No later than Commencing with the fifth first full Fiscal Year ending after the Closing Date, within ten (10) Business Day following Days after the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in date the financial statements are required to have been delivered pursuant to Section 5.04(a) (Financial Statements and Other Information) for each case, in excess of $15,000,000 in any Fiscal YearYear (the “ECF Date”), the Borrower shall apply prepay an aggregate principal amount of Tranche B Term Loans (the “ECF Payment Amount”) equal to 100(A) 50% (such percentage, as it may be reduced as described below, the “Net Proceeds ECF Percentage”) of Excess Cash Flow, if any, for the Fiscal Year covered by such Net Proceeds financial statements minus (without duplication and to the extent applicable) (B) the sum of (1) all voluntary prepayments (or Net Insurance/Condemnation Proceeds received with respect thereto in excess any Refinancing Indebtedness thereof) during such Fiscal Year or during the period between the end of such threshold Fiscal Year and the date by which any such prepayment is due (collectively, the “Subject Proceeds”without duplication of any such credit in any prior or subsequent Fiscal Year) pursuant to Section 2.10(a) (Prepayment of Loans) to prepay the outstanding principal amount extent such prepayments are not funded with the proceeds of Long Term Indebtedness and (2) all repurchases of Tranche B Term Loans then subject (or any Incremental Term Loans, any Incremental Equivalent Indebtedness, any Refinancing Indebtedness thereof or Revolving Facility (and any Incremental Revolving Facility) (to prepayment requirements the extent accompanied by a permanent reduction of the corresponding commitments)), during such Fiscal Year pursuant to Section 9.04(g), (the “Subject Loans”h), (i) or (j) (Successors and Assigns) in accordance with clause (vi) belowthe amount actually paid in cash in respect thereof; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds ECF Percentage shall be 25.0% if the Total Debt to Equity Consolidated First Lien Net Leverage Ratio for the Test Period most recently ended prior to the date of Fiscal Year covered by such required prepayment financial statements is less than or equal to 0.50 4.00 to 1.00 and greater than 0.25 3.50 to 1.00 1.00, (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (zy) the Net Proceeds ECF Percentage shall be 0.0% if the Total Debt to Equity Consolidated First Lien Net Leverage Ratio for as of the Test Period most recently ended prior to the date last day of such required prepayment Fiscal Year covered by such financial statements is less than or equal to 0.25 3.50 to 1.00 and (with z) a prepayment of Term Loans pursuant to this Section 2.10(b)(ii) (Prepayment of Loans) in respect of any Fiscal Year shall only be required in the amount (if any) by which the ECF Payment Amount for such Fiscal Year exceeds $10,000,000. The Consolidated First Lien Net Proceeds Percentage being Leverage Ratio shall be calculated after giving pro forma effect to any repayment or prepayment of Tranche B Term Loans during such Fiscal Year or during the period between the end of such Fiscal Year and the date by which any such prepayment at a rate is due (without duplication of 100%any such credit in any prior or subsequent Fiscal Year).
(iii) In No later than the event that fifth Business Day following the Borrower or any date of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries after any Net Recovery Proceeds exceeding $10,000,000 individually (whether in one transaction or in a series of transactions) or exceeding in the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01aggregate $25,000,000 in any calendar year, except the Borrower shall apply 100% of such Net Recovery Proceeds to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion prepayment of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Tranche B Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation2.09(c) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 3 contracts
Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)
Mandatory Prepayments. (ia) [ReservedIntentionally Omitted].
(iib) No later than the fifth Business Day following the Subject to clause (c) below, upon receipt by any Canadian Loan Party of Net Cash Proceeds in respect (but only if at the time of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds such receipt the Available Credit is less than 25% of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearthe Aggregate Borrowing Limit at such time), the Borrower shall apply an amount equal to 100% (within one Business Day after such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to receipt prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) provide cash collateral in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any Letters of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested Credit as set forth above in this clause (I)d) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (iibelow) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans as set forth in accordance with clause (vid) below.
(ivc) Notwithstanding anything in this Section 2.11(bclause (b) to above, as long as no Event of Default shall have occurred or be continuing on the contrary:
(A) date Net Cash Proceeds are received by any Canadian Loan Party, the Borrower shall not be required to prepay any so apply an amount that would otherwise be required equal to be paid pursuant to Section 2.11(b)(ii) above Net Cash Proceeds arising from a Reinvestment Event to the extent that all Net Cash Proceeds from all Reinvestment Events do not exceed $5,000,000 (in the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary aggregate since the Closing Date) and are actually used (or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as have been contractually committed to be used) to consummate a Permitted Acquisition or to purchase replacement or fixed assets (in the case may beof an Asset Sale) or repair or replace (in the case of a Property Loss Event) the sold, for so long as damaged or taken property within 180 days of the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties receipt of such Foreign Subsidiary’s directorsNet Cash Proceeds by a Canadian Loan Party and, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant pending application of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceedsproceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriationhas either (i) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, paid an amount equal to such Subject Net Cash Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the Administrative Agent to be held by the Administrative Agent in a Cash Collateral Account designated by the Administrative Agent or (ii) applied an amount equal to such Net Cash Proceeds in repayment of the Revolving Loans and the Administrative Agent shall have established an Availability Reserve in the amount of such repayment, which reserve shall ▇▇▇▇▇ on the Reinvestment Prepayment Date applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) such Net Cash Proceeds or earlier to the extent that Revolving Loans up to the relevant Subject amount of such Net Cash Proceeds are received used as set forth in the Reinvestment Notice with respect thereto; provided, however, that to the extent any asset subject to such Asset Sale or Property Loss Event constituted Collateral, any replacement, fixed or alternative assets acquired with Net Cash Proceeds shall, upon acquisition thereof by any joint venturea Canadian Loan Party, be subject to a perfected Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as having the distribution to the Borrower priority described in Section 4.20 of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, this Agreement and the distributed Subject Proceeds will be promptly Collateral Documents (and but, in any event not later than two Business Days after such distribution) applied to the repayment case of the applicable Term Loans pursuant to this Section 2.11(b) a Permitted Acquisition, only to the extent required herein (without regard to this by clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof); provided thatfurther, for however, in the avoidance event an Event of doubtDefault has occurred and is continuing after the provisions in this clause (c) become operative, no Lender may reject any prepayment made under Section 2.11(b)(iii) the Administrative Agent may, or shall at the direction of the Requisite Lenders, apply all amounts in the Cash Collateral Account referred to above to the extent that such prepayment is made with Obligations.
(d) Subject to the Net Proceeds provisions of clause (wc) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.above and Section
Appears in 3 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (iiexcluding any Indebtedness incurred in accordance with Section 7.2) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, shall be incurred by the Borrower shall apply or any Restricted Subsidiary, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied not later than one Business Day after the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess toward the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements as set forth in Section 2.12(d).
(b) Unless the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and Required Prepayment Lenders shall otherwise agree, if on any date the Borrower does not notify or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in writing prior to respect thereof, such Net Cash Proceeds shall be applied not later than five Business Days after such date toward the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2010, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments, and all optional prepayments of Term Loans during such fiscal year (other than optional prepayments pursuant to Section 2.11(c)), in each case other than to the extent any period during such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the scheduled expiration of the Borrower’s existence financial statements referred to in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”Section 6.1(a), 100% of for the Net Proceeds of all ordinary course and non-ordinary course asset sales fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to repay the prepayment of the Term Loans or in accordance with Section 2.18(b) until paid in full. In connection with any Asset Financing Facility secured directly or indirectly mandatory prepayments by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required the Term Loans pursuant to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing Section 2.12, such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable 2.12(e), then, with respect to such Foreign Subsidiary, a “Restricted Amount”)mandatory prepayment, the amount that the Borrower of such mandatory prepayment shall be required applied first to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided Term Loans that are ABR Loans to the full extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise thereof before application to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At that are Eurocurrency Loans in a manner that minimizes the Borrower’s option, amount of any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans payments required to be made by the Borrower pursuant to Section 2.11(b), 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to decline all (but not a portion) of its Applicable Percentage the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to Tranche B Term Loans and Tranche C Term Loans (such declined amountsamount, the “Declined ProceedsTranche B Prepayment Amount”), in which case such Declined Proceeds may be retained by at any time when Tranche A Term Loans remain outstanding, the Borrower and will be added will, in lieu of applying such amount to the Available Amount prepayment of Tranche B Term Loans and Tranche C Term Loans as set forth provided in clause paragraph (a)(vd) of above, on the definition thereof; provided thatdate specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (which, for the avoidance of doubt, no includes each New Term Lender) and Tranche C Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender and Tranche C Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans and Tranche C Term Loans. Each Tranche B Term Lender and Tranche C Term Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of its Tranche B Prepayment Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York time) one Business Day after such Tranche B Term Lender’s or Tranche C Term Lender’s receipt of the Prepayment Option Notice (which notice shall specify the principal amount of the Tranche B Prepayment Amount to be rejected by such Lender); provided that any Tranche B Term Lender’s or Tranche C Term Lender’s failure to so reject such Tranche B Prepayment Amount shall be deemed an acceptance by such Tranche B Term Lender or Tranche C Term Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans pursuant held by such Tranche B Term Lender or Tranche C Term Lender. On the Mandatory Prepayment Date, the Borrower shall (i) pay to Section 6.01(p), (x) Incremental the relevant Tranche B Term Loans incurred Lenders and Tranche C Term Lenders the aggregate amount necessary to refinance all or a prepay that portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the outstanding relevant Term Loans in accordance with the requirements respect of Section 9.02(c), and/or which such Lenders have (zor are deemed to have) Incremental Equivalent Debt incurred to refinance all or a portion of the accepted prepayment as described above and (ii) prepay outstanding Tranche A Term Loans in accordance with an aggregate amount equal to the requirements amounts declined by Tranche B Term Lenders and Tranche C Term Lenders as described above; provided that, upon the making of Section 6such prepayments, any amount remaining unapplied (i.e., after the payment in full of the Tranche A Term Loans) shall be returned to the Borrower.
Appears in 3 contracts
Sources: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Mandatory Prepayments. (a) In each Fiscal Year:
(i) [Reserved].the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Permitted Prepayment Asset Sale Proceeds to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period until such time that the amount of Shared Proceeds paid to the Mandatory Prepayment Indebtedness pursuant to this Section 2.05 exceeds US$50,000,000 (or the US Dollar equivalent thereof) in such Fiscal Year; and
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of if, at any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, time during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any such Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Shared Proceeds received with respect thereto in excess of such threshold Fiscal Year by the Company and its Subsidaries and paid to the Mandatory Prepayment Indebtedness pursuant to this Section 2.05 exceeds US$50,000,000 (collectively, or the “Subject Proceeds”US Dollar equivalent thereof) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowShared Proceeds Trigger” for such Fiscal Year), then after the Shared Proceeds Trigger and until the last day of such Fiscal Year, the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Permitted Prepayment Asset Sale Proceeds of any Permitted Prepayment Asset Sales received by the Company after such Shared Proceeds Trigger to the Other Prepayment Indebtedness within the applicable Required Payment Period; provided that that, notwithstanding the foregoing, if and for so long as any “Default” or “Event of Default” is continuing under, and as defined in, the Major Derivative Counterparty Loan or the BBVA Loan, the Company shall and shall cause each of its Subsidiaries to prepay 100% of the Net Cash Proceeds of any Pledged Entity Asset Sales to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period; provided that, in the case of clauses (Ai) and (ii) above, if and for so long as no Scheduled Wind-Down Period Default or Event of Default is then in effect continuing hereunder and the Borrower does not notify Company has delivered a Reinvestment Certificate within the Administrative Agent in writing prior applicable Required Payment Period for such Permitted Prepayment Asset Sale, up to 50% of the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Shared Permitted Prepayment Asset Sale Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) the Disposition of any of the Borrower or Banorte Shares) may be used for Investments in long-term productive assets used in the Company’s Core Business during the Reinvestment Period for such Permitted Prepayment Asset Sale; provided, further, that any such amount of its Restricted Subsidiaries, then, Shared Permitted Prepayment Asset Sale Proceeds used for Investments in long-term productive assets used in the Borrower Company’s Core Business shall not be required to make a mandatory prepayment under this clause counted against the thresholds in clauses (i) and (ii) in respect above; provided, further, that if all or any portion of such Shared Permitted Prepayment Asset Sale Proceeds is not ultimately applied to such Investments within the Subject Proceeds Reinvestment Period pursuant to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereofpreceding proviso, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration remaining portion of such 18 month period (it being understood that if Shared Permitted Prepayment Asset Sale Proceeds shall be applied to prepay the Subject Proceeds have not been so reinvested prior Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above thresholds in this clause clauses (I)i) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of above, on the Subject Proceeds Required Repayment Date. Notwithstanding anything herein to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”)contrary, 100% of the Net Cash Proceeds of all ordinary course and non-ordinary course asset sales any Disposition of any of the Banorte Shares shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the Prepayment thresholds in clauses (i) and (ii) above, within the applicable Required Payment Period, and none of the Other Applicable Indebtedness (determined on Net Cash Proceeds thereof may be used for Investments in long-term productive assets in the basis Company’s Core Business or any purpose other than prepayment of the Mandatory Prepayment Indebtedness or Other Prepayment Indebtedness, as applicable.
(b) In each Fiscal Year:
(i) the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Casualty Event Proceeds to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period until such time that the amount of Shared Proceeds received by the Company and its Subsidiaries exceeds US$50,000,000 (or the US Dollar equivalent thereof) in such Fiscal Year; and
(ii) if, at any time during such Fiscal Year, a Shared Proceeds Trigger occurs, then after such Shared Proceeds Trigger and until the last day of such Fiscal Year, the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of such Shared Casualty Event Proceeds received by the Company after such Shared Proceeds Trigger to the Other Prepayment Indebtedness within the applicable Required Payment Period; provided that, notwithstanding the foregoing, if and for so long as any “Default” or “Event of Default” is continuing under, and as defined in, the Major Derivative Counterparty Loan or the BBVA Loan, the Company shall and shall cause each of its Subsidiaries to prepay 100% of the Net Cash Proceeds of any Pledged Entity Casualty Event to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period; provided that, if and for so long as no Default or Event of Default is continuing hereunder, and (i) the Shared Casualty Events Proceeds of any Casualty Event do not exceed (A) US$10,000,000 (or the US Dollar Equivalent thereof) without the written consent of the holders of more than 50% of the then aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness Major Derivative Counterparty Loan (such consent not to be subject to a fee or to be unreasonably withheld) or (B) US$55,000,000 (or accreted amount if such Other Applicable Indebtedness is issued with original issue discountthe US Dollar Equivalent thereof) at such time); it being understood that in any event and (1ii) the portion Company has (A) filed a claim in respect of such Casualty Event within five (5) Business Days thereof and (B) delivered a Casualty Certificate within ten (10) Business Days following the filing of such claim, all (but no more than US$10,000,000 (or the US Dollar Equivalent thereof) without the written consent of the Subject Proceeds allocated to holders of more than 50% of the Other Applicable Indebtedness shall not exceed the then aggregate outstanding principal amount of the Subject Major Derivative Counteryparty Loan or US$55,000,000 (or the US Dollar Equivalent thereof) in any event) of such Shared Casualty Events Proceeds required from such Casualty Event may be used to Restore any such affected Properties during the Reinvestment Period; provided, further, that any such amount of Shared Casualty Events Proceeds from such Casualty Event used to Restore any such affected Properties shall not be allocated counted against the thresholds in clauses (i) and (ii) above; provided, further, that if all or any portion of such Shared Casualty Events Proceeds from such Casualty Event is not ultimately applied to Restore any affected Properties within the Other Applicable Indebtedness Reinvestment Period pursuant to the terms thereofpreceding proviso, and the any remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date portion of such rejection) Shared Casualty Events Proceeds from such Casualty Event shall be applied to prepay the Subject Loans Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the extent required thresholds in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, clauses (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%i) and (zii) above, on the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Required Repayment Date.
(iiic) In The Company shall, and shall cause each of its Subsidiaries to, apply 100% of the event that Net Cash Proceeds of the Borrower issuance of any Indebtedness of the Company or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than the issuance of Indebtedness that is permitted to be incurred under this Agreement including by Section 6.01, except to the extent the relevant Indebtedness constitutes 7.16 (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion Limitations on Incurrence of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Additional Indebtedness), ) to prepayment of the Borrower shall, promptly upon Other Prepayment Indebtedness within five (and in any event not later than five 5) Business Days thereafter) following the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) belowthereof.
(ivd) Notwithstanding anything in this Section 2.11(b) to If the contrary:
(A) the Borrower shall not be required to prepay Company incurs any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely Permitted Refinancing Indebtedness with respect to any joint venture that is a Restricted SubsidiaryOther Prepayment Indebtedness (including any partial Refinancings thereof), for so long as and such Permitted Refinancing Indebtedness consists of:
(i) Permitted Refinancing Indebtedness raised in the distribution debt capital markets, the Company shall apply 100% of the Net Cash Proceeds of such Permitted Refinancing Indebtedness to prepayment of the Other Prepayment Indebtedness within five (5) Business Days following the receipt thereof; or
(ii) any other Permitted Refinancing Indebtedness, the Company shall apply 100% of the Net Cash Proceeds of such Permitted Refinancing Indebtedness to the Borrower prepayment of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly Mandatory Prepayment Indebtedness within five (and in any event not later than two 5) Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovereceipt thereof.
(ve) At the Borrower’s option, any Term Lender may elect, by notice Any mandatory prepayment of Other Prepayment Indebtedness shall be made on a pro rata basis according to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any Other Prepayment Pro Rata Amounts for such Other Prepayment Indebtedness.
(f) Any mandatory prepayment of Term the Loans required shall be paid in US Dollars and applied to be made by the Borrower pursuant all Minor Derivative Counterparty Loans on a pro rata basis according to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6each Minor Derivative Counterparty’s Pro Rata Share.
Appears in 3 contracts
Sources: Loan Agreement (Gruma Sab De Cv), Loan Agreement (Gruma Sab De Cv), Loan Agreement (Gruma Sab De Cv)
Mandatory Prepayments. (ia) [Reserved]If, after the Merger Effective Time, any Indebtedness shall be incurred by the Parent or any of its Subsidiaries (other than any permitted Indebtedness incurred in accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall be applied in accordance with clause (iii) of the definition thereof)), an amount equal to 100.0% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.13(d).
(iib) No later than If on any date after the Merger Effective Time the Parent or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, an amount equal to 100% of the Net Cash Proceeds shall be applied on the fifth Business Day following the receipt thereof toward the prepayment of the Term Loans as set forth in Section 2.13(d); provided, that, notwithstanding the foregoing, at the option of the Parent, the Parent may reinvest the Net Cash Proceeds in respect the business of the Parent or any Prepayment Asset Sale of its Subsidiaries within (x) 18 months following the receipt of such Net Cash Proceeds or (y) 24 months following the receipt of such Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesCash Proceeds, in each casethe event that the Parent or any of its Subsidiaries shall have entered into a binding commitment within 18 months following the receipt of such Net Cash Proceeds to reinvest such Net Cash Proceeds in the business of the Parent or any of its Subsidiaries (it being understood that if any portion of such Net Cash Proceeds are no longer intended to be reinvested or are not reinvested within such 24-month period, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Cash Proceeds shall be applied on the fifth Business Day after the Parent reasonably determines that such Net Cash Proceeds are no longer intended to be or Net Insurance/Condemnation Proceeds received with respect thereto in excess are not reinvested within such 24-month period toward prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (IISection 2.13(d)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, if at the time that any such prepayment would be required hereunderrequired, the Borrower Parent or any of its Restricted Subsidiaries is required to Prepay prepay or offer to repurchase with the Net Cash Proceeds of such Asset Sale or Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured by a Lien on a the Collateral that is pari passu basis (but without regard to the control of remedies) with the Liens securing the Obligations by pursuant to the terms of the documentation governing such other Indebtedness (such other IndebtednessIndebtedness required to be offered to be so repurchased, “Other Applicable Asset Sale Indebtedness”), then the relevant Person Parent may apply the Subject Net Cash Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Asset Sale Indebtedness (or accreted amount if at such time) to the prepayment of such Other Applicable Indebtedness is issued with original issue discount) at such time)Asset Sale Indebtedness; it being understood that (1) the portion of the Subject Net Cash Proceeds allocated to the Other Applicable Asset Sale Indebtedness shall not exceed the amount of the Subject Net Cash Proceeds required to be allocated to the Other Applicable Asset Sale Indebtedness pursuant to the terms thereof, thereof (and the remaining amount, if any, of the Subject Net Cash Proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.13(b) shall be reduced accordingly and accordingly.
(2c) [Reserved].
(d) The application of any prepayment pursuant to Section 2.13(a) or (b) shall reduce the extent the holders outstanding principal amounts of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, Term Loans held by the declined amount Lenders on a pro rata basis and shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to remaining scheduled principal installments thereof as directed by the extent required Company (and, in accordance with the terms absence of this Section 2.11(b)(iisuch direction, in direct order of maturity). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion The application of any Class prepayment of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) 2.13 shall be made, first, to ABR Loans, second, to RFR Loans and third, to Term Benchmark Loans. Each prepayment of the Loans under this Section 2.13 shall be accompanied by accrued interest to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower date of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (prepayment on the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveprepaid.
(ve) At the Borrower’s option, any Term Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the a Borrower pursuant to Section 2.11(b2.13(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower Parent and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofused for any purpose not prohibited hereunder; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii2.13(a) above to the extent that such prepayment is made with the Net Proceeds proceeds of (w) any Credit Agreement Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant Loans. If any Lender fails to Section 6.01(p)deliver a notice to the Administrative Agent of its election to decline receipt of its ratable percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, (x) Incremental Term Loans incurred such failure will be deemed to refinance all or a portion constitute an acceptance of such Lender’s ratable percentage of the total amount of such mandatory prepayment of the Term Loans.
(f) [Reserved].
(g) If at any time the Total Revolving Extensions of Credit exceed 105% of the Total Revolving Commitments, the Borrowers shall, within one Business Day of notice thereof from the Administrative Agent, prepay the Revolving Loans in an amount equal to the amount of such excess or, to the extent the principal amount of Revolving Loans outstanding is less than the amount of such excess, cash collateralize L/C Obligations in respect of any Letters of Credit (in an amount equal to 101% of the undrawn face amount thereof) (or backstop or provide credit support reasonably acceptable to the applicable Issuing Lender), in each case to the extent necessary to eliminate any such excess.
(h) Notwithstanding any other provisions of Section 2.13, to the extent any or all of the Net Cash Proceeds from any Asset Sale or Recovery Event received by a Foreign Subsidiary are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Parent or any applicable Domestic Subsidiary (the Parent hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation as long as such repatriation does not create a non-de minimis adverse tax consequence) or if the Parent has determined in good faith that repatriation of any such amount to the Parent or any applicable Domestic Subsidiary would have non-de minimis adverse tax consequences with respect to such amount, the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.13 but may be retained by the applicable Foreign Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Parent or the applicable Domestic Subsidiary, or the Parent believes in good faith that such non-de minimis adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law or the Parent determines in good faith that such repatriation would no longer would have such non-de minimis adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the applicable Term Loans as otherwise required pursuant to this Section 2.222.13; provided that, notwithstanding the foregoing, the Parent and the applicable Foreign Subsidiary shall have no obligation to repatriate any Net Cash Proceeds (yor take any further action with respect thereto) Replacement Term Loans incurred to refinance all or any portion from and after the date that is twelve months after the receipt of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6such Net Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement (Neogen Corp), Credit Agreement (Garden SpinCo Corp)
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (ii) No later excluding any Indebtedness incurred in accordance with Section 7.2, other than the fifth Business Day following the receipt of Net Proceeds Permitted Refinancing Obligations in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Term Loans) shall be incurred by the Borrower shall apply or any Restricted Subsidiary, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied not later than one Business Day after the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess toward the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements as set forth in Section 2.12(d).
(b) Unless the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and Required Prepayment Lenders shall otherwise agree, if on any date the Borrower does not notify or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in writing prior to respect thereof, such Net Cash Proceeds shall be applied not later than 10 Business Days after such date toward the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2014, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans to the extent accompanied by permanent optional reductions of the Revolving Commitments, and all optional prepayments of Term Loans (x) during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) during the period during beginning with the day following the last day of such fiscal year and ending on the Excess Cash Flow Application Date and stated by the Borrower to be prepaid pursuant to this Section 2.12(c)(ii)(y), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the scheduled expiration of the Borrower’s existence financial statements referred to in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”Section 6.1(a), 100% of for the Net Proceeds of all ordinary course and non-ordinary course asset sales fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to repay the prepayment of the Term Loans or in accordance with Section 2.18(b) until paid in full. In connection with any Asset Financing Facility secured directly or indirectly mandatory prepayments by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required the Term Loans pursuant to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing this Section 2.12, such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans and with respect to prepayments pursuant to Section 2.12(b) such Net Cash Proceeds may be applied, along with such prepayment of the Subject Term Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness PrepaidBorrower elects, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment or is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtednessthereof), the Borrower shallto purchase, promptly upon (and in redeem or repay any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted SubsidiaryPari Passu Debt, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) pursuant to the contrary:
(A) the Borrower shall agreements governing such other Indebtedness, on not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, more than a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely pro rata basis with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower such prepayments of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject ProceedsTerm Loans; it being understood provided that if no Lender exercises the relevant prohibition ceases right to exist, the relevant joint venture that is waive a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment given mandatory prepayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable 2.12(e), then, with respect to such Foreign Subsidiary, a “Restricted Amount”)mandatory prepayment, the amount that the Borrower of such mandatory prepayment shall be required applied first to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided Term Loans that are ABR Loans to the full extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise thereof before application to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At that are Eurocurrency Loans in a manner that minimizes the Borrower’s option, amount of any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans payments required to be made by the Borrower pursuant to Section 2.11(b), 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to decline all (but not a portion) of its Applicable Percentage the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12 or 2.18, with respect to the amount of any mandatory prepayment pursuant to Section 2.12(b) or (c) that is allocated to Tranche B Term Loans (such declined amountsamount, the “Declined ProceedsTranche B Prepayment Amount”), in which case such Declined Proceeds may be retained by the Borrower and will be added will, in lieu of applying such amount to the Available Amount prepayment of Tranche B Term Loans as set forth provided in clause paragraph (a)(vd) of above, on the definition thereof; provided thatdate specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (which, for the avoidance of doubt, no includes each New Term Lender and Extended Lender holding Tranche B Term Loans) a notice (each, a “Tranche B Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Tranche B Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche B Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche B Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Tranche B Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. Each Tranche B Term Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of its Tranche B Prepayment Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche B Term Lender’s receipt of the Tranche B Prepayment Option Notice (which notice shall specify the principal amount of the Tranche B Prepayment Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche B Amount”); provided that any Tranche B Term Lender’s failure to so reject such Tranche B Prepayment Amount shall be deemed an acceptance by such Tranche B Term Lender of such Tranche B Prepayment Option Notice and the amount to be prepaid in respect of Tranche B Term Loans held by such Tranche B Term Lender. On the Tranche B Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above. If there are (1) any Tranche A Term Loans then outstanding and (2) any Declined Tranche B Amounts in respect of a Tranche B Prepayment Option Notice, on the Business Day following the applicable Tranche B Mandatory Prepayment Date the Borrower shall give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche A Term Lender (which, for avoidance of doubt, includes each New Term Lender and Extended Lender holding Tranche A Term Loans) a notice (each, a “Tranche A Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche A Term Lender a Tranche A Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche A Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche A Prepayment Option Notice, the Tranche A Term Loans of such Lender by an amount equal to the portion of the Declined Tranche B Amount indicated in such Lender’s Tranche A Prepayment Option Notice as being applicable to such Lender’s Tranche A Term Loans. Each Tranche A Term Lender may reject all or a portion of its Declined Tranche B Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche A Term Lender’s receipt of the Tranche A Prepayment Option Notice (which notice shall specify the principal amount of its Declined Tranche B Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche A Amount”); provided that any Tranche A Term Lender’s failure to so reject such Declined Tranche B Amount shall be deemed an acceptance by such Tranche A Term Lender of such Tranche A Prepayment Option Notice and the amount to be prepaid in respect of Tranche A Term Loans held by such Tranche A Term Lender. On the Tranche A Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche A Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche A Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above.
(f) If, on any date, the aggregate Revolving Extensions of Credit would exceed the aggregate Revolving Commitments (including as a result of any revaluation of the Dollar Equivalent of the L/C Obligations on any Revaluation Date in accordance with Section 1.4), the Borrower shall promptly prepay Revolving Loans in an aggregate principal amount equal to such excess and/or pay to the Administrative Agent an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the aggregate principal amount equal to such excess to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(g) Notwithstanding any other provision of this Section 2.12, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Tranche B Term Loans pursuant to Section 6.01(p2.12(a), (x) Incremental Term Loans incurred to refinance all or a exchange such Lender’s portion of the Tranche B Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Tranche B Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance so exchanged shall be deemed repaid for all or any portion of purposes under the Term Loans in accordance with the requirements of Section 9.02(cLoan Documents), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Mandatory Prepayments. Subject to the terms of the Intercreditor Agreement,
(ia) [Reserved]Upon the occurrence of a Change of Control, the Borrowers shall make Full Payment of all Obligations.
(iib) No later than the fifth Business Day following the receipt of Net Proceeds in respect of When an Obligor or any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business Subsidiary thereof (other than Cash a Foreign Subsidiary) makes any Asset Disposition (other than a disposition described under clause (a), (b), (c), (d), (e), (f) or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investmentsg) of the Borrower definition of “Permitted Asset Disposition” hereof) or experiences any of its Restricted Subsidiaries, thenAsset Loss Event, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the Net Cash Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds to prepay shall be held in trust for Collateral Agent; provided, however, that the outstanding principal amount Net Cash Proceeds of the relevant Class foregoing received since the Closing Date shall not be required to be applied to the prepayment of the Loans to the extent such proceeds are to be reinvested in or Classes otherwise used to replace, repair or restore the properties or assets used in such Obligor’s or such Subsidiary’s, as applicable, business and so long as: (i) no Default or Event of Term Loans Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (ii) Borrower Representative delivers a certificate to Collateral 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 (or committed to be used) to reinvest in new assets useful in the business, or otherwise replace, repair or restore any such properties or assets to be used in such Obligor’s or such Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 270 days (or such longer period as Collateral Agent may agree, but not to exceed 360 days without the Required Lenders’ consent) 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 any plans for such replacement, repair or restoration, which shall be acceptable to Collateral Agent in its Permitted Discretion) and (iii) such Net Cash Proceeds are deposited in a non-interest bearing account subject to the dominion and control of Collateral Agent (or, so long as the Revolver Agreement is in effect, the Revolving Credit Agent, acting as agent for Collateral Agent) which proceeds shall then be disbursed by Collateral Agent to such Obligor or such Subsidiary promptly upon Borrower Representative’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 Collateral Agent in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
ii); provided, further, that (A) if all or any portion of such Net Cash Proceeds not so applied to the Borrower shall prepayment of the Loans are not be required to prepay any amount that would otherwise be required used (or committed to be paid pursuant used) in accordance with the foregoing proviso within 270 days (or such longer period as Collateral Agent may agree, but not to Section 2.11(b)(iiexceed 360 days without the Required Lenders’ consent) above of receipt of such Net Cash Proceeds, such amount shall be applied to the extent that Loans as otherwise set forth herein, on the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary last day of such specified period, (B) if such Obligor or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign such Subsidiary, as the case may be, for is not permitted to reinvest or utilize such Net Cash Proceeds in accordance with this Section 2.1.6(b) as a result of the existence of a Default, Borrower Representative may request, and upon the written approval of Collateral Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to the dominion and control of Collateral Agent (or, so long as the repatriation to Revolver Agreement is in effect, the Borrower Revolving Credit Agent, acting as agent for Collateral Agent) until the earlier of any (x) the date on which such amount would be prohibited Default is cured or delayed under any Requirement of Law or conflict waived in writing in accordance with the fiduciary duties terms of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”)Agreement, in which case such Declined Proceeds amounts may be retained by the Borrower and will be added to the Available Amount as set forth reinvested or utilized in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made accordance with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, proviso above and (y) Replacement Term Loans incurred the date on which an Event of Default shall occur, in which case such Net Cash Proceeds shall be applied to refinance all or any portion of the Term Loans in accordance with Section 5.4.1 on such date and (C) if such Obligor or such Subsidiary, as the requirements case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of Section 9.02(c)a continuing Event of Default, and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans such Net Cash Proceeds shall be applied in accordance with Section 5.4.1. The foregoing shall not be deemed to be implied consent to any Asset Disposition or other event otherwise prohibited by the requirements terms and conditions hereof.
(c) Upon the sale or issuance of any of the Equity Interests (other than Excluded Issuances) of Ultimate Parent or any of its Subsidiaries, Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds of such sale or issuance, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds shall be held in trust for Collateral Agent.
(d) Upon the sale, issuance or incurrence of any Debt of any Obligor or any of its Subsidiaries (other than Debt permitted under Section 69.2.1), Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds of such sale, issuance or incurrence, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Collateral Agent. The foregoing shall not be deemed to be implied consent to any such sale, issuance or incurrence otherwise prohibited by the terms and conditions hereof.
(e) When any Obligor or any Subsidiary (other than a Foreign Subsidiary) thereof receives any Extraordinary Receipts, Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds thereof, such repayment to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds. The foregoing shall not be deemed to be implied consent to any event or condition giving rise to any Extraordinary Receipts which would otherwise constitute a Default or Event of Default under this Agreement.
Appears in 2 contracts
Sources: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Notwithstanding the fifth Business Day following the receipt provisions of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate InvestmentsSection 2.13(g) of the Borrower or any of its Restricted Subsidiaries, thenCredit Agreement, the Borrower proceeds of any Pari Passu Debt shall not be required to make a mandatory prepayment under this clause (ii) in respect of be applied to prepay 2018 Term F Loans until the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject 2017 Term E Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of repaid in full and until such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of time any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class payment of Term Loans in accordance with Section 2.13(g) of the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion Credit Agreement as if no 2018 Term F Loans were outstanding. From and after the time that the 2017 Term E Loans are no longer outstanding, the proceeds of any Class of Term Loans Pari Passu Debt shall be applied in accordance with Section 2.13(g) of the requirements of Section 6.01(z), in each case Credit Agreement without giving effect to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof prior sentence of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may paragraph. Applicable Percentage: The Applicable Percentage will be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted SubsidiaryEurodollar 2018 Term F Loan, for so long 3.25% per annum, and with respect to any ABR 2018 Term F Loan, 2.25% per annum. EXHIBIT B-1 Form of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC Legal Opinion ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (615) 742-6200 March 9, 2015 Credit Suisse AG, as Administrative Agent, Collateral Agent, and Issuing Bank Credit Suisse Securities (USA) LLC, as Sole Book Runner and Sole Lead Arranger, Each of the distribution Lenders party to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases Credit Agreement described below Ladies and Gentlemen: We have acted as special counsel to exist(i) CHS/Community Health Systems, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign SubsidiaryInc., a Delaware corporation (“Restricted AmountBorrower”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii(ii) aboveCommunity Health Systems, as applicableInc., shall be reduced by the Restricted Amount; provided that to the extent that the repatriation a Delaware corporation (or other intercompany distribution“Parent”), and (iii) each of the relevant Subject Proceeds, directly or indirectly, from Subsidiaries listed on the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause Schedule of Guarantors attached hereto as Exhibit A (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amountscollectively, the “Declined ProceedsGuarantors” and each a “Guarantor”), in which case such Declined Proceeds may be retained connection with that certain Amendment No. 1 and Incremental Term Loan Assumption Agreement, dated as of even date herewith (the “Amendment and Assumption”), among Parent, Borrower, the Guarantors, the Lenders listed on the signature pages thereto and Credit Suisse, AG, as Administrative Agent and Collateral Agent (the “Agent”). We have been requested by Borrower to render this opinion pursuant to Section 5(c) of the Amendment and Assumption. Reference is made to that certain Third Amended and Restated Credit Agreement, dated as of January 27, 2014 (as amended by the Amendment and Assumption, the “Credit Agreement”), among Parent, Borrower, the Agent, and the Lenders party thereto. Parent, Borrower and will be added the Guarantors are collectively referred to herein as the “Opinion Entities” and each an “Opinion Entity”. References herein to the Available Amount “Delaware Opinion Entity” and “Delaware Opinion Entities” means individually and collectively, Parent and Borrower. Capitalized terms used but not otherwise defined herein have the same meanings as in the Credit Agreement. In connection with this opinion, we have examined (i) the Credit Agreement and (ii) the Amendment and Assumption (sometimes herein referred to collectively as the “Transaction Documents”). We have also reviewed the certificate of incorporation and bylaws of each Delaware Opinion Entity (collectively, the “Organizational Documents”), and such corporate records of the Opinion Entities, such certificates of public officials and such other matters regarding the Credit Suisse AG, as Administrative Agent, Collateral Agent, and Issuing Bank March 9, 2015 Delaware Opinion Entities as we have deemed necessary or appropriate for purposes of this opinion letter. As to factual matters, we have assumed the correctness of and relied upon statements and other representations of the Delaware Opinion Entities and the officers thereof set forth in clause (a)(v) the Transaction Documents and in certificates provided pursuant to or in connection with the Transaction Documents or otherwise provided to us, and upon certificates of public officials, and we have made no independent inquiries or investigations. We have assumed that all of the definition thereof; provided that, for documents we have reviewed are the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion valid and binding obligations of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion parties thereto. For purposes of the Term Loans pursuant to Section 2.22opinions on the existence and good standing of each Delaware Opinion Entity, (y) Replacement Term Loans incurred to refinance all we have relied solely upon certificates of good standing of recent date issued by the Secretary of State of Delaware. In making such examination and in expressing our opinions, we have further assumed, without investigation or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.inquiry:
Appears in 2 contracts
Sources: Incremental Term Loan Assumption Agreement, Incremental Term Loan Assumption Agreement
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary)Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 70.0% and greater than 0.50 to 1.00 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 64.5% and greater than 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.050.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 10025.0%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofBorrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.6.01
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of excluding any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) Indebtedness incurred in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii7.2) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such the Net Cash Proceeds to prepay thereof shall be applied on the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or date of receipt of such Subject Proceeds; it being understood that if Net Cash Proceeds toward the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment prepayment of the applicable Term Loans pursuant to this as set forth in Section 2.11(b) to the extent required herein (without regard to this clause (iv2.12(d)), and.
(Cb) to Unless the extent that Required Prepayment Lenders shall otherwise agree, if on any date any of the relevant Prepayment Borrower or any Subsidiary Guarantor shall for its own account receive Net Cash Proceeds from any Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryRecovery Event then, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from unless a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower Reinvestment Notice shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) abovedelivered in respect thereof, as applicable, such Net Cash Proceeds shall be reduced by applied on such date toward the Restricted Amountprepayment of the Loans as set forth in Section 2.12(d); provided that to notwithstanding the extent foregoing, on the date (the “Trigger Date”) that is six months after the repatriation (or other intercompany distributionapplicable Reinvestment Prepayment Date, the Loans shall be prepaid as set forth in Section 2.12(d) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, by an amount equal to the Subject Proceeds portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Parent commencing with the fiscal year ending on or nearest to December 31, 2007, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent availableaccompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such fiscal year, and not previously applied pursuant to this clause (C), shall be promptly applied in each case other than to the repayment extent any such prepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause Section 2.12(d). Each such prepayment shall be made on a date (a)(van “Excess Cash Flow Application Date”) no later than ten Business Days after the date on which the financial statements of the definition thereof; provided thatParent referred to in Section 6.1(a), for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above fiscal year with respect to the extent that which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans prepayments pursuant to Section 6.01(p)2.12 shall be applied, (x) Incremental Term Loans incurred first, to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full and, second, to the requirements prepayment of the Revolving Loans in accordance with Section 9.02(c2.18(c) and, to the extent of any excess, to provide cover for L/C Obligations as specified in Section 8. Any such mandatory prepayment of the Revolving Loans pursuant to Section 2.12 shall not result in a mandatory reduction of the Revolving Commitments. The application of any prepayment pursuant to Section 2.12 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term Loans (which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), and/or at any time when Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans as provided in paragraph (zd) Incremental Equivalent Debt incurred above, on the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to refinance each Term Lender (which, for avoidance of doubt, includes each New Term Lender) a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit J (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans held by such Lender) prepayment as described above and (ii) the Borrower shall offer to pay to such accepting Term Lenders an amount equal to the portion of the aggregate Prepayment Amount not accepted by the relevant Term Lenders, and (to the extent accepted by any or all or a portion of such accepting Term Lenders) such amount shall be applied to the prepayment of the Term Loans in accordance with held by such Term Lenders ratably based upon the requirements aggregate principal amount of Section 6such Loans; provided that, following such offer and application, any amount remaining unapplied shall be returned to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Yankee Finance, Inc.), Credit Agreement (Yankee Holding Corp.)
Mandatory Prepayments. (a) If Indebtedness shall be issued or incurred by any Loan Party (i) [Reserved].
not permitted to be incurred or issued pursuant to Section 7.2 or (ii) No later than the fifth Business Day following the receipt of Net Proceeds that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andthe Term Loans, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% of the Net Cash Proceeds thereof shall be applied as soon as practicable but in any event within five (5) Business Days after such percentageissuance or incurrence toward the prepayment of the Term Loans on a pro rata basis (except, as it may to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan) as set forth in Section 2.11(d); provided, that all prepayments under this Section 2.11(a) shall be reduced as described accompanied by the Repricing Premium, if applicable.
(b) Subject to clause (e) below, if on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied as soon as practicable but in any event within ten (10) days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d) on a pro rata basis (except, as to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan); 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 Tranche B Term Loans as set forth in Section 2.11(d); provided, further, that with respect to any prepayment event referenced in this paragraph (b), (i) the Borrower shall not be obligated to make any prepayment otherwise required by this paragraph (b) unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sale and Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $5,000,000 (the “Net Proceeds PercentagePrepayment Trigger”) in any fiscal year of the Borrower, but then from all such Net Cash Proceeds (excluding amounts below the Prepayment Trigger) and (ii) the Borrower may use a portion of such Net Cash Proceeds to prepay or Net Insurance/Condemnation Proceeds received repurchase First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on a pari passu basis with respect thereto in excess of such threshold the Liens securing the Obligations (collectively, the “Subject ProceedsOther Applicable Indebtedness”) to prepay the extent required pursuant to the terms of the documentation governing such Other Applicable Indebtedness, in which case, the amount of prepayment required to be made with respect to such Net Cash Proceeds pursuant to this Section 2.11(b) shall be deemed to be the amount equal to the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend prepaid pursuant to this paragraph (Ib) reinvest (including to make capital expenditures) and the Subject Proceeds in denominator of which is the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) sum of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness prepaid pursuant to the terms thereof, of the documents governing such Other Applicable Indebtedness and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the outstanding principal amount of the prepayment of the Subject Term Loans that would have otherwise been required to be prepaid pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)paragraph.
(iiic) In the event that Subject to clause (e) below, if, for any fiscal year of the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance commencing with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z)fiscal year ending September 30, in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)2015, there shall be Excess Cash Flow, the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) on the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiaryrelevant Excess Cash Flow Application Date, apply an amount equal to 100% (i) the ECF Percentage of such Excess Cash Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and Swingline Loans made during such fiscal year to the extent accompanying permitted optional reductions of the Revolving Commitments and the aggregate amount of cash used for all optional prepayments of Term Loans made during such fiscal year, toward the prepayment of the Term Loans as set forth in Section 2.11(d) on a pro rata basis (except, as to term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan\). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(d) The application of any prepayment of Tranche B Term Loans pursuant to Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans; provided that, if such application would be inconsistent with Section 2.17(b), then Section 2.17(b) shall apply. Each prepayment of Tranche B Term Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid and by any amounts payable pursuant to Section 2.20.
(e) Notwithstanding any other provisions of this Section 2.11, (i) to the extent that any of or all the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or Domestic Foreign Holding Company giving rise to a prepayment pursuant to Section 2.11(b) (a “Foreign Disposition”), the Net Cash Proceeds of any such prepayment event pursuant to Section 2.11(b) from a Foreign Subsidiary (a “Foreign Prepayment Event”), or Excess Cash Flow would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational or constitutive documents or any agreement or (z) subject to other onerous organizational or administrative impediments, from being repatriated to the United States, the portion of such Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall Excess Cash Flow so affected will not be required to prepay any amount that would otherwise be required applied to be paid pursuant to repay Term Loans as provided in Section 2.11(b)(ii2.11(b) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary(c), as the case may be, for so long as and instead, such amounts may be retained by the repatriation to applicable Foreign Subsidiary or Domestic Foreign Holding Company (the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with hereby agrees to use commercially reasonable efforts (as determined in the fiduciary duties of such Foreign SubsidiaryBorrower’s directors, or result in, or would reasonably be expected reasonable business judgment) to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such otherwise cause the applicable Foreign Subsidiary (it being agreed that, solely to within 365 days one year following the event giving rise to date on which the relevant Subject Proceedsrespective payment would otherwise have been required, the Borrower shall promptly take all commercially reasonable actions reasonably required by the applicable Requirements of Law local law, applicable organizational or constitutive impediment or other impediment to permit such repatriation) (it being understood that ), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of the relevant Subject any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law andlaw, to the extent applicableapplicable organizational or constitutive impediment or other impediment, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds repatriation will be promptly applied (net of additional Taxes that would be payable effect and such repatriated Net Cash Proceeds or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds Excess Cash Flow will be promptly (and in any event not later than two five (5) Business Days after such distributionrepatriation could be made) applied (net of additional taxes, costs and expenses payable or reserved against as a result thereof) (whether or not repatriation actually occurs) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) 2.11 to the extent required provided herein and (without regard to this clause (iv)), and
(Cii) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines has determined in good faith that repatriation of any of or all the repatriation Net Cash Proceeds of any Foreign Disposition, any Foreign Prepayment Event or Excess Cash Flow would have an adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow (or other intercompany distribution) to which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so Holdings, the Borrower, directly any Restricted Subsidiary or indirectlyany of their respective affiliates and/or equity partners would incur a tax liability, from including a Foreign Subsidiary as a distribution or tax dividend, deemed dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Code Section 2.11(b)(ii) above would result in 956 or a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”tax), the amount that the Borrower shall Net Cash Proceeds or Excess Cash Flow so affected may be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced retained by the Restricted Amount; provided that to the extent that the repatriation (applicable Foreign Subsidiary or other intercompany distribution) Domestic Foreign Holding Company. The non-application of any prepayment amounts as a consequence of the relevant Subject Proceedsforegoing provisions will not, directly for the avoidance of doubt, constitute a Default or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment Event of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveDefault.
(vf) At In connection with (i) any optional prepayment of borrowings hereunder, the Borrower making the prepayment or (ii) any mandatory prepayment of borrowings hereunder, the Borrower making the prepayment shall, in each case, subject to the provisions of this paragraph and paragraph (d) of this Section, select the borrowing or borrowings to be prepaid and shall specify such selection in the notice of such prepayment. The Administrative Agent will promptly notify each Lender holding the applicable Class of Term Loans of the contents of the Borrower’s option, any prepayment notice and of such Lender’s pro rata share of the prepayment. Each such Term Loan Lender may electreject all (but not less than all) of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (b) or (c) of this Section 2.11 by providing notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofprepayment; provided that, that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iiiwith the proceeds of Credit Agreement Refinancing Indebtedness. Any Declined Proceeds remaining thereafter shall be retained by the Borrower (“Retained Declined Proceeds”).
(g) above Notwithstanding anything herein to the extent that such prepayment is made with contrary, the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Lenders holding any Initial Term Loans pursuant shall always be entitled to Section 6.01(p), (x) Incremental pro rata payment in respect of such Initial Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Loans.
Appears in 2 contracts
Sources: Credit Agreement (National Mentor Holdings, Inc.), Credit Agreement (National Mentor Holdings, Inc.)
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of Intermediate Dutch Holdings are required to be delivered pursuant to Section 5.01(b), commencing with the first full Fiscal Year ending after the Closing Date, the Borrowers shall prepay (or cause to be prepaid) the outstanding principal amount of Tranche B-3 Term Loans, Eleventh Amendment Dollar Refinancing Term Loans, Eleventh Amendment Euro Refinancing Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) of this Section 2.11(b) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (x) the Required Excess Cash Flow Percentage of Excess Cash Flow of Intermediate Dutch Holdings and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (y) at the option of the Borrower Representative (to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)):
(A) (1) the aggregate principal amount of any optional prepayment, repurchase, redemption or other retirement of any First Lien Debt (and in the case of any such First Lien Debt constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitments) prior to the date that the applicable prepayment is due and (2) the aggregate principal amount of any optional prepayment, repurchase, redemption or other retirement of any Junior Lien Debt (and in the case of any such Junior Lien Debt constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitments) prior to the date that the applicable prepayment is due, in each case of the foregoing clauses (1) and (2), excluding any such optional prepayment, repurchase, redemption or other retirement made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year of the Intermediate Dutch Holdings;
(B) the amount of any reduction in the outstanding principal amount of any Term Loan, any other First Lien Debt and/or any Junior Lien Debt resulting from any assignment to (and/or purchase by) Intermediate Dutch Holdings or any Restricted Subsidiary of any such Indebtedness (and in the case of any such Indebtedness constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitment) prior to the date that the applicable prepayment is due, in each case, to the extent of the amount paid in Cash by Intermediate Dutch Holdings or the applicable Restricted Subsidiary in connection with the relevant assignment and/or purchase, excluding any such assignment and/or purchase made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year;
(C) the amount of any Capital Expenditure, Investment, Restricted Payment and/or Restricted Debt Payment (1) made during such Fiscal Year or after such Fiscal Year but prior to the date that the applicable prepayment is due or (2) contractually committed during such Fiscal Year (or after such Fiscal Year but prior to the date that the applicable prepayment is due) to be made during the immediately succeeding Fiscal Year, in each case, excluding any such amount that (x) is actually applied during such Fiscal Year and (y) reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year; provided, that the deduction described in clause (1) above shall not apply to the extent the relevant amount was financed with the proceeds of long-term funded Indebtedness (other than revolving Indebtedness); provided, that:
(I) no prepayment under this Section 2.11(b)(i) shall be required unless the amount thereof exceeds the greater of $25,000,000 and 5% of Consolidated Adjusted EBITDA (the “De Minimis ECF Threshold”) as of the last day of the most recently ended Test Period; it being understood that (x) only the amount in excess of the De Minimis ECF Threshold shall be required to be applied to make a prepayment in accordance with this Section 2.11(b)(i) and (y) if the amount of any required prepayment pursuant to this Section 2.11(b)(i) (without giving effect to the De Minimis ECF Threshold) for any Excess Cash Flow Period is less than the De Minimis ECF Threshold for such Excess Cash Flow Period, an amount equal to (1) the De Minimis ECF Threshold for such Excess Cash Flow Period minus (2) the amount of the required prepayment (without giving effect to the De Minimis ECF Threshold) pursuant to this Section 2.11(b)(i) for such Excess Cash Flow Period shall be applied to increase the De Minimis ECF Threshold in succeeding Excess Cash Flow Periods;
(II) if at the time that any such prepayment would be required, Intermediate Dutch Holdings (or any Restricted Subsidiary of Intermediate Dutch Holdings) is also required to prepay any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower Representative may apply (or cause to be applied) such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, that (X) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly and (Y) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness prepaid, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans and any relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in the first proviso of this clause (II)) in accordance with the terms hereof; it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by this clause (Y), the Borrower Representative shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness; and
(III) to the extent the ECF Prepayment Amount for any Excess Cash Flow Period, after giving effect to all deductions and credits (including any deduction of the types described in clauses (A) through (C) above) applicable thereto, is a negative amount, such negative amount may be carried forward to reduce the required ECF Prepayment Amount with respect to any future Excess Cash Flow Period selected by the Borrower Representative in its sole discretion.
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of the greater of $15,000,000 25,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower Borrowers shall apply (or cause to be applied) an amount equal to 100% (such percentage, as it may be reduced as described below, the “Required Net Proceeds Percentage”) Percentage of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term of, and accrued interest on, the Subject Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that provided, that
(A) so long as no Scheduled Wind-Down Period it is then understood that (1) only the amount in excess of the De Minimis Proceeds Threshold shall be required to be applied to make a prepayment in accordance with this Section 2.11(b)(ii) and (2) if the amount of any prepayment that would have been required pursuant to this Section 2.11(b)(ii) (without giving effect and to the Borrower does not notify De Minimis Proceeds Threshold) for any Fiscal Year is less than the Administrative Agent De Minimis Proceeds Threshold for such Fiscal Year, an amount equal to (x) the De Minimis Proceeds Threshold for such Fiscal Year minus (y) the amount of the prepayment that would have been required but for the De Minimis Proceeds Threshold pursuant to this Section 2.11(b)(ii) for such Fiscal Year shall be applied to increase the De Minimis Proceeds Threshold in writing succeeding Fiscal Years;
(B) if prior to the date on which any such prepayment is required to be made that it does not intend made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to (I) reinvest (including to make capital expenditures) the applicable Subject Proceeds in the business of Intermediate Dutch Holdings and/or any subsidiary (other than an investment in Cash or Cash Equivalents) (including), without limitation, investments in CRE Finance Assets and Real Estate Investments) of then the Borrower or any of its Restricted Subsidiaries, then, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the applicable Subject Proceeds to the extent (x1) the applicable Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y2) the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries subsidiary has committed to so reinvest the applicable Subject Proceeds during such 18 18-month period and the applicable Subject Proceeds are so reinvested within 180 days 6 month after the expiration of such 18 18-month period (period; it being understood that (x) if the applicable Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower Borrowers shall promptly prepay the Subject Loans with the amount of applicable Subject Proceeds not so reinvested as set forth above in this clause (I)without regard to the immediately preceding proviso) and (provided that, with respect y) any investment by Intermediate Dutch Holdings or its applicable subsidiaries (up to this clause an amount equal to the applicable Subject Proceeds) after the earlier to occur of (I), at i) the Borrower’s election by written date on which the definitive agreement for the applicable Disposition was executed and (ii) the date on which the Borrower Representative delivers notice to the Administrative Agent, expenditures and investments occurring Agent of a pending Disposition (but prior to receipt of the relevant Subject date on which Intermediate Dutch Holdings and/or any subsidiary receives the Net Proceeds (and not otherwise applied in respect of any other prepayment required by Prepayment Asset Sale or Net Insurance Condemnation Proceeds) may, at the election of the Borrower Representative, be deemed to constitute a reinvestment of the applicable Subject Proceeds in compliance with, and in satisfaction of the obligations under, this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)B); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months and
(a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (BC) if, at the time that any such prepayment would be required hereunder, the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries is required to Prepay repay or repurchase any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Other Applicable Indebtedness (or offer to repurchase such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (NIQ Global Intelligence LTD), Credit Agreement (NIQ Global Intelligence LTD)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Immediately upon the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days incurrence after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness Closing Date by the Borrower or any of its Restricted Subsidiaries after the Closing Date domestic subsidiaries (other than Indebtedness that any domestic subsidiary which is permitted to be a direct or indirect subsidiary of a foreign subsidiary) of any indebtedness for borrowed money (other than (x) indebtedness incurred under this Agreement including Section 6.01, except pursuant to the extent existing “Commitments” under and as defined in the relevant Indebtedness constitutes Incorporated Agreement, and (Ay) Refinancing Indebtedness (including Replacement Notes) indebtedness in an aggregate principal amount of up to $100,000,000 incurred to refinance all or a portion in connection with any private offering of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtednesssenior notes), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply shall prepay an amount equal to 100% of such Net Proceeds to prepay the aggregate outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) Loan equal to the contrary:
(A) cash amount of such indebtedness which the Borrower shall not be required is able to prepay borrow thereunder (net of any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated underwriting discounts, commissions, fees and other reasonable and customary out‑of‑pocket expenses, incurred by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directorsin connection therewith); provided, or result inhowever, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation terms or provisions of any Short Term Loan Facilities require the relevant Subject Proceeds is permitted Borrower to make a prepayment of indebtedness under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, Short Term Loan Facilities in a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard manner similar to this clause (ivh) (such indebtedness under such Short Term Loan Facilities being referred to as “Prepayable Indebtedness”))),
(B) , then the Borrower shall not be required to prepay any amount that would Parexel International Corporation January 22, 2013 Page 4 otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited prepayable under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))h) shall be pro‑rated among the Term Loan and such other Prepayable Indebtedness based on the aggregate principal amount outstanding. Notwithstanding the foregoing, and
(C) to in the extent event that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary “Commitments” under and as defined in the Incorporated Agreement are increased after the date hereof or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans refinanced pursuant to Section 2.11(b)(iia credit facility (which does not otherwise cause the Maturity Date to occur) above would result in a material adverse Tax liability principal amount greater than the maximum aggregate principal amount of credit facilities under the Incorporated Agreement as in effect on the date hereof (taking into account any withholding Taxbut regardless of the actual outstanding borrowings thereunder on the date hereof) (the amount attributable to such Foreign Subsidiary, a “Restricted Principal Increase Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) prepayment provisions of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), h) shall be promptly applied only apply to the repayment Principal Increase Amount under the Incorporated Agreement (net of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s optionany underwriting discounts, any Term Lender may electcommissions, by notice to the Administrative Agent at or prior to the time fees and in the manner specified by the Administrative Agentother reasonable and customary out‑of‑pocket expenses, prior to any prepayment of Term Loans required to be made incurred by the Borrower pursuant to Section 2.11(bin connection therewith), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Term Loan Facility Agreement, Term Loan Facility (Parexel International Corp)
Mandatory Prepayments. (i) [Reserved]Not later than fifteen (15) Business Days following the receipt by a Borrower of the Net Cash Proceeds with respect to: (A) any Asset Sale by such Borrower (other than Asset Sales permitted under Section 6.06) of assets that form part of the Collateral, or (B) a Casualty Event, such Borrower shall apply 100% of such Net Cash Proceeds received with respect thereto to prepay the Loans made to such Borrower.
(ii) No Not later than the fifth (5th) Business Day following the receipt after occurrence of Net Proceeds a Change in Control with respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andto a Borrower, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the such Borrower shall apply an amount equal to 100% prepay its Borrowings in full.
(such percentageiii) Any prepayment under this Section 2.10(b) shall be accompanied by all sums due and payable under this Agreement, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does other Loan Documents, including but not notify limited to Breakage Costs.
(iv) Notwithstanding the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (includingforegoing, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower Borrowers shall not be required to make a mandatory prepayment under pursuant to this sub-clause (iib) with the Net Cash Proceeds from any Asset Sale as provided in respect paragraph (i) above or Casualty Event if the Borrowers advise the Facility Agent in writing within fifteen (15) Business Days after the time such Net Cash Proceeds are received that the applicable Borrower intends to reinvest all or any portion of the Subject such Net Cash Proceeds in replacement assets to the extent (xA) the Subject such Net Cash Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has in fact committed to so reinvest be reinvested by such Borrower pursuant to a purchase contract providing for the Subject Proceeds during acquisition of such 18 month period replacement assets that is executed by such Borrower and the Subject Proceeds are so reinvested related seller within 180 one hundred and eighty (180) days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, Asset Sale or Casualty Event and (xB) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to acquisition of such replacement assets occurs within two hundred and seventy (270) days after the date of such required prepayment is less than Asset Sale or equal to 0.75 to 1.00 Casualty Event. If, at any time after the occurrence of such Asset Sale as provided in paragraph (i) above or Casualty Event and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date acquisition of such required prepayment is less than the related replacement assets, the 180- or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes 270-day period provided in clause (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or a portion the occurrence of any Class the related acquisition (in the case of Term Loans pursuant to Section 2.22clause (B)) or an Event of Default shall occur, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower then Borrowers shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiaryrequest, apply an amount equal to 100% of such Net Proceeds to immediately prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) made to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Facility Agreement, Facility Agreement (Equinix Inc)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than If a Change of Control occurs that has not been consented to in writing by Agent prior to the fifth consummation thereof, on or prior to the first Business Day following the receipt date of Net Proceeds in respect such Change of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andControl, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect Loan and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business all other Obligations (other than Cash than, indemnity obligations that are not then due and payable or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have no claim has been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (iimade) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans full in cash together with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior accrued interest thereon to the date of such required prepayment is less than or equal and all other amounts owing to 0.75 to 1.00 Agent and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted Lenders under the applicable Requirement of Law and, to Loan Documents and the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes Revolving Advance Prepayment Additional Interest and Term Loan Prepayment Additional Interest that would be payable on such date, and whereupon the Revolving Loan Commitments shall be terminated; provided, that if such event occurs on or reserved against as a result of repatriating such amounts) prior to May 14, 2021, Borrower shall also pay Agent, for the repayment benefit of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject ProceedsLenders, an amount equal to the Subject Proceeds to sum of the extent available, Revolving Commitment Lockout Period Additional Interest and not previously applied pursuant to this clause (C), the Term Loan Lockout Period Additional Interest; provided further that any such prepayment shall be promptly applied to the repayment of the applicable Term Loans pursuant to in compliance with Section 2.11(b) as otherwise required above6.16 hereof.
(vb) At In addition to and without limiting any provision of any Loan Document, if Borrower, in any transaction or series of related transactions, (a) sells any Pledged Lease or other material assets or other properties, (b) sells or issues any equity or debt securities, Equity Interests or other ownership interests other than, in each case, to Holdings or (c) incurs any Indebtedness except for Permitted Indebtedness, then it shall deposit 100% (or such lesser amount as is required to indefeasibly pay in cash in full the Borrower’s option, any Term Lender may elect, by notice Obligations (other than indemnity obligations that are not then due and payable or with respect to which no claim has been made)) of the cash proceeds thereof (net of reasonable transaction costs and expenses and taxes) to the Administrative Agent at or prior to Collateral Account, and the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth Revolving Advance Prepayment Additional Interest provided for in clause (a)(vi) of the definition thereof; provided that, provided, that if such event occurs on or prior to May 14, 2021, Borrower shall also pay Agent, for the avoidance benefit of doubtthe Lenders, no Lender may reject any prepayment made under Section 2.11(b)(iii) above an amount equal to the extent amount of interest that would have accrued on the sum of the principal balance of the Loan plus projected further utilization of the Loan hereunder (as determined by Agent in its Permitted Discretion), from such date of prepayment is made with to May 14, 2021, at a per annum rate equal to the Net Proceeds Calculated Rate.
(c) In no event shall the sum of the aggregate outstanding principal balance of the Revolving Loan Advances exceed the lesser of (wi) Refinancing Indebtedness the Borrowing Base and (ii) the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid principal balance of the Revolving Loan Advances exceed the Maximum Revolving Loan Amount, Borrower shall promptly, and in any event within five (5) Business Days, without the necessity of any notice or demand, whether or not a Default or Event of Default has occurred or is continuing, prepay the principal balance of the Loan in an amount equal to the difference between the then aggregate outstanding principal balance of the Revolving Loan Advances and the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid principal balance of the Loan exceeds the Borrowing Base (including Replacement Notesdue to any Eligible Lease thereafter failing to meet the eligibility criteria and becoming an Ineligible Lease; provided, however, that if such Lease is an Ineligible Lease solely as a result of a Regulatory Trigger Event described in clause (xxx) incurred to refinance all or a portion of the Term Loans pursuant definition of “Eligible Leases” Borrower shall have forty five (45) calendar days after the earlier of its discovery or receipt of notice thereof to comply with this clause(c) of Section 6.01(p2.6), then Borrower shall without the necessity of any notice or demand, whether or not a Default or Event of Default has occurred or is continuing, either (x) Incremental Term Loans incurred to refinance all or a portion prepay the principal balance of the Term Loans pursuant Loan in an amount equal to Section 2.22, the difference between the then aggregate outstanding principal balance of the Loan and the Borrowing Base or (y) Replacement Term Loans incurred increase the aggregate principal balance of Eligible Leases pledged to refinance all or any portion of the Term Loans Agent in accordance with this Agreement so that the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred Borrowing Base is equal to refinance all or a portion exceeds the then outstanding principal balance of the Term Loans in accordance Loan. The pledge and delivery to Agent of additional Eligible Leases shall comply with the document delivery requirements set forth in Sections 2.9 and 4.2 of Section 6this Agreement, as applicable, and shall be accompanied by a certification from Borrower that demonstrates that after giving effect to the pledge to Agent of such additional Eligible Leases, the outstanding unpaid principal balance of the Loan is equal to or less than the Borrowing Base.
Appears in 2 contracts
Sources: Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (Katapult Holdings, Inc.)
Mandatory Prepayments. (a) The Borrower shall make a prepayment of the Loans, on the relevant Mandatory Prepayment Date, as set forth below in an amount equal to:
(i) [Reserved].100% of the amount of (A) Subsidiary Disposition Proceeds, (B) Subsidiary Incremental Indebtedness Proceeds and (C) Subsidiary Incremental Equity Proceeds received by the Borrower as a result of the related BV Holdings Corporate Action (in each case plus an amount equal to the Applicable Distribution Taxes);
(ii) No later than 100% of the fifth Business Day following amount of BV Holdings Disposition Proceeds;
(iii) 100% of the receipt Net After-Tax Cash Proceeds received by the Borrower for the Equity Issuance by the Borrower to any Person permitted hereunder;
(iv) 100% of the Net After-Tax Cash Proceeds in respect received by the Borrower for the Debt Incurrence by the Borrower to any Person permitted hereunder;
(v) 100% of any Prepayment Asset Sale or an amount equal to the Net Insurance/Condemnation After-Tax Cash Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, (A) in excess of $15,000,000 200,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds aggregate received by or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required Available to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) received by EME from any Disposition of the Borrower assets of EME or any of its Restricted Subsidiaries, then, Subsidiaries (or such Subsidiary's share of proceeds from the Borrower shall not be required to make Disposition of an asset of a mandatory prepayment under this clause Joint Enterprise in which such Subsidiary has an interest) (ii) in respect of the Subject Proceeds to the extent other than assets held by (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y1) the Borrower or any of its Restricted Subsidiaries has committed (or related assets thereof), (2) any Primary Guarantor or any of its Subsidiaries (or related assets thereof) or (3) any Secondary Guarantor or any of its Subsidiaries (or related assets thereof), the Secondary Guarantee of which was released during the occurrence and continuation of a Default (other than an Affirmative Covenant Default)), (B) received by or Available to so reinvest be received by EME from any Disposition of (1) any Primary Guarantor or any of its Subsidiaries (or related assets thereof) or (2) any Secondary Guarantor or any of its Subsidiaries (or related assets thereof), the Subject Proceeds Secondary Guarantee of which was released during such 18 month period the occurrence and the Subject Proceeds are so reinvested within 180 days after the expiration continuation of such 18 month period a Default (it being understood that if the Subject Proceeds have not been so reinvested prior other than an Affirmative Covenant Default) and (C) except as provided in Section 7.5, received by Mission Energy Wales from any Disposition of Mission Hydro Partnership or its Subsidiaries (or related assets thereof);
(vi) 100% of an amount equal to the expiration Net After-Tax Cash Proceeds of any Disposition of the applicable period, the Borrower shall promptly prepay the Subject Loans with EcoEléctrica/Del Cielo Note received by EME or any of its Subsidiaries;
(vii) 100% of an amount equal to the amount received by the Shareholder Guarantor directly or indirectly in respect of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, a Disposition with respect to this clause which the Borrower receives Subsidiary Disposition Proceeds;
(I), at the Borrower’s election by written notice viii) 100% of an amount equal to the Administrative Agent, expenditures and investments occurring prior Net After-Tax Cash Proceeds received by or Available to receipt be received by EME from (A) the issuance or incurrence of Incremental Indebtedness by EME or (B) the relevant Subject Proceeds issuance or incurrence of Incremental Indebtedness by any of EME's Subsidiaries (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets than BV or any of its Subsidiaries); and
(yix) CRE Financing 100% of an amount equal to the Net After-Tax Cash Proceeds received by or Available to be received by EME for equity issuances by EME or any of its Subsidiaries (other than BV or any of its Subsidiaries) to any Person (in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, other than EME or a wholly-owned Subsidiary of EME); provided, that the foregoing shall not apply to pay Indebtedness of such Subsidiary), then, Subsidiary Disposition Proceeds and BV Holdings Disposition Proceeds received by the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with which after taking into account the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, Distribution Taxes and the amount of Subsidiary Disposition Proceeds not distributed to the prepayment of Borrower as contemplated below would equal up to $50,000,000 in the Subject Loans that would have otherwise been required aggregate. Mandatory prepayments pursuant to this Section 2.11(b)(iiclauses (i) through (iv) above shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended made on or prior to the date two Business Days after receipt by the Borrower of such required prepayment is less than or equal the amount to 0.75 be prepaid and mandatory prepayments pursuant to 1.00 and greater than 0.50 to 1.00 clause (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), v) through (yix) the Net Proceeds Percentage above shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended made on or prior to the date three Business Days after occurrence of the related mandatory prepayment event (any such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 day, a "Mandatory Prepayment Date"). For the purposes of clauses (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%a)(i)(B), (a)(iv) and (za)(viii) the Net Proceeds Percentage of this Section 3.1.2, an exchange offer by any Person pursuant to which Indebtedness of such Person will be exchanged for Indebtedness of another Person shall be 0.0% if the Total Debt deemed to Equity Ratio for the Test Period most recently ended prior result in cash proceeds equal to the date principal amount of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)exchange.
(iiib) In The Borrower shall make a prepayment of the event that full amount of the outstanding Loans at any time (i) the Borrower does not directly own 99.99% of all of the ownership interests in BV or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (Aii) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event EME does not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to directly own 100% of such Net Proceeds to prepay the outstanding principal amount all of the relevant Class or Classes of Term Loans ownership interests in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Edison Mission Energy), Credit Agreement (Edison Mission Energy)
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day following the receipt of Net Proceeds of Property-Level Subsidiary Refinancing Indebtedness, the Borrowers shall apply an amount equal to the Required Percentage of such Net Proceeds received with respect thereto (the “Subject Refinancing Proceeds”) to prepay the outstanding principal amount of Subject Loans; provided that (A) the Parent, BPR or any of their respective Subsidiaries in their sole discretion may, in lieu of making a prepayment pursuant to this Section 2.11(b)(i), use the Subject Refinancing Proceeds within 180 days following receipt thereof to (I) make Capital Expenditures reasonably expected by the Borrower Representative to be made during such period or (II) make Restricted Payments reasonably expected by the Borrower Representative to be made during such period in order to maintain the REIT status of any Loan Party (provided that to the extent such Capital Expenditures or Restricted Payments, as applicable, are not made within such 180 day period, the Subject Loans shall be repaid with any such remaining excess amount of Subject Refinancing Proceeds at the Required Percentage then required for such prepayment within 5 Business Days after the end of such 180 day period) and (B) notwithstanding anything to the contrary contained in this Section 2.11(b)(i), in the case of Subject Refinancing Proceeds received by any non-Wholly Owned Subsidiary of the Parent or BPR, only that portion of such Subject Refinancing Proceeds that are allocable (based on economic share and not necessarily percentage ownership) to the Parent or BPR shall be subject to prepayment in accordance with this Section 2.11(b)(i).
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearProceeds, the Borrower Borrowers shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Required Percentage of such the Net Proceeds or Net Insurance/Condemnation Proceeds Proceeds, as applicable, received with respect thereto in excess of the thresholds set forth in clause (C) of this clause (ii) (and only such threshold excess amount shall be subject to prepayment) (collectively, the “Subject Disposition Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if prior to the date any such prepayment is required to be made that it does not intend made, the Borrower Representative notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the Subject Disposition Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower Parent, BPR or any of its Restricted their respective Subsidiaries, thenthen so long as no Event of Default then exists, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Disposition Proceeds to the extent (x) the Subject Disposition Proceeds are so reinvested within 18 months 180 days following receipt thereof, or (y) the Borrower Parent, BPR or any of its Restricted their respective Subsidiaries has committed to so reinvest the Subject Disposition Proceeds during such 18 month 180-day period and the Subject Disposition Proceeds are so reinvested within 180 days after the expiration of such 18 month period (180-day period; it being understood that if the Subject Disposition Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower Borrowers shall promptly prepay the Subject Loans with the amount of Subject Disposition Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect without regard to this clause (Ithe immediately preceding proviso), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower Parent, BPR or any of its Restricted their respective Subsidiaries is required to Prepay repay or repurchase any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured on a pari passu basis with any Secured Obligation pursuant to the Obligations by terms of the documentation governing such other Indebtedness with the Subject Disposition Proceeds (such other IndebtednessIndebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Disposition Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Disposition Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Disposition Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, thereof (and the remaining amount, if any, of the Subject Disposition Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of notice of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms hereof (without giving effect to this proviso), (C) the obligation to make a prepayment under this Section 2.11(b)(ii) shall only apply if and to the extent (1) the aggregate amount of (x) Net Proceeds resulting from any individual Prepayment Asset Sale, together with any Prepayment Asset Sales which are in connection with the same transaction or related series of transactions and (y) Net Insurance/Condemnation Proceeds, in each case received by the Parent, BPR and/or any of their respective Subsidiaries exceeds $25,000,000 and (2) the aggregate amount of such Net Proceeds described in clause (1)(x) above resulting from Prepayment Asset Sales or such Net Insurance/Condemnation Proceeds described in clause (1)(y) above, as applicable, received by the Parent, BPR or any of their respective Subsidiaries in any Fiscal Year exceeds $150,000,000 and (D) notwithstanding anything to the contrary contained in this Section 2.11(b)(ii). Notwithstanding , in the foregoing, except during a Scheduled Wind-Down Period, (x) the case of Net Proceeds Percentage or Net Insurance/Condemnation Proceeds received by any non-Wholly Owned Subsidiary (direct or indirect) of the Parent or BPR, only that portion of such proceeds that are allocable (based on economic share and not necessarily percentage ownership) to the Parent or BPR shall be 50.0% if the Total Debt subject to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 in accordance with this Section 2.11(b)(ii) and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if applied towards the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 thresholds set forth in clause (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%C) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)above.
(iii) In the event that the any Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of the Term Loans pursuant to Section 6.01(p), (B6.08(c) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of the Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower Borrowers shall, promptly upon substantially simultaneously with (and in any event not later than five the next succeeding Business Days thereafterDay) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiaryrelevant Borrower, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) The Borrowers shall promptly (and in any event within five Business Days) prepay the Revolving Loans at any time when the aggregate principal amount of all Initial Revolving Loans, all LC Exposure and all Swingline Exposure exceeds the Initial Revolving Credit Commitment in effect at such time, to the full extent of any such excess.
(v) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower Borrowers of any such amount would be prohibited or delayed under any Requirement Requirements of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following BPR hereby agreeing to cause the event giving rise applicable Foreign Subsidiary to the relevant Subject Proceeds, the Borrower shall promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (); it being understood and agreed that if the repatriation of the relevant affected Subject Proceeds is permitted under the applicable Requirement Requirements of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil personal or criminal liability for the Persons described above, in either case, an amount equal within 365 days following the event giving rise to such the relevant Subject Proceeds (for purposes of this paragraph, the “365-Day Period”), the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds and the repatriated Subject Proceeds will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)v)),
(B) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) to the extent that the relevant Subject Proceeds are received by in respect of any joint ventureJoint Venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower Borrowers of such Subject Proceeds would be prohibited under the Organizational Documents organizational documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject ProceedsJoint Venture; it being understood and agreed that if the relevant prohibition ceases to existexist within the 365-day period following the event giving rise to the relevant Subject Proceeds, the relevant joint venture that is a Restricted Subsidiary Joint Venture will promptly distribute the relevant Subject Proceeds, Proceeds and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower Representative determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary Borrowers as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above that are attributable to any Foreign Subsidiary would result in a material and adverse Tax liability (taking into account including any withholding Tax) (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), the amount that the Borrower Borrowers shall be required to mandatorily prepay pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, Proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365 365-day period following the event giving rise to the relevant Subject ProceedsProceeds (for purposes of this paragraph, the “365-Day Period”), an amount equal to the Subject Proceeds Relevant Amount (reduced by any relevant Taxes) and, to the extent available, available and not previously applied to the repayment of the Term Loans pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(vvi) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the any Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds shall first be applied to any other Class of Term Loans required to be prepaid hereunder and, then, the remaining amount thereof may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for relevant Borrower. For the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above above. If any Lender fails to deliver a notice to the extent Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Term Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vii) Except as otherwise provided in any Refinancing Amendment or any Extension Amendment, and subject to the last sentence of this Section 2.11(b)(vii), each prepayment of Term Loans pursuant to this Section 2.11(b) shall be applied first to the Term A-1 Facility until the Term Loans thereunder are repaid in full, second to the Term A-2 Facility until the Term Loans thereunder are repaid in full, third to the Term B Facility until the Term Loans thereunder are repaid in full and, thereafter, ratably to any other Class of Term Loans then outstanding (provided that such any prepayment is made of Term Loans with the Net Proceeds of (w) any Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) and/or any Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to refinance the applicable Class of Term Loans being refinanced or replaced). With respect to each Class of Term Loans, all or any portion prepayments accepted under this Section 2.11(b) shall be applied against the remaining scheduled installments of principal due in respect of such Class of Term Loans as directed by the relevant Borrower (or, in the absence of direction from the relevant Borrower, to the remaining scheduled amortization payments in respect of such Class of Term Loans in accordance with the requirements direct order of Section 9.02(cmaturity), and/or (z) Incremental Equivalent Debt incurred and each such prepayment shall be paid to refinance all or a portion of the Term Loans Lenders of such Class in accordance with their respective Applicable Percentages of the requirements applicable Class. The amount of such mandatory prepayments shall be, subject to the foregoing order, applied first to the then outstanding Term Loans that are ABR Loans and then to the then outstanding Term Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any payments required to be made by the relevant Borrower pursuant to Section 62.16.
(viii) Prepayments made under this Section 2.11(b) shall be (A) accompanied by accrued interest as required by Section 2.13, (B) subject to Section 2.16 and (C) in the case of prepayments of Initial Term Loans under clause (iii) above as part of a Repricing Transaction, subject to Section 2.12(f), but shall otherwise be without premium or penalty.
Appears in 2 contracts
Sources: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)
Mandatory Prepayments. (i) [Reserved].
(iix) No later than If any Prepayment Event under any of clauses (a) through (d) of the fifth Business Day following defined term “Prepayment Event” occurs, then, to the receipt extent of any remaining Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, received by the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Loan Parties on account thereof after application of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) proceeds to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) ABL Obligations in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, ABL Loan Agreement or (y) the Borrower or if any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period Prepayment Event under clause (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration e) of the applicable perioddefined term “Prepayment Event” occurs, then the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause Borrowers shall, within five (I)5) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing Business Days (or immediately in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary incurrence of any Indebtedness that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (iiPermitted Indebtedness) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following after receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay each such Prepayment Event, prepay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing in an amount equal to such Net Proceeds (or remaining Net Proceeds, as applicable), together with any applicable Prepayment Premium in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary amount specified in the Agent Fee Letter; provided, however, that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior notwithstanding anything to the date contrary in the Agent Fee Letter, no Prepayment Premium shall become due and payable in connection with any Prepayment Event under clause (e) of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%)defined term “Prepayment Event”, (y) the Net Proceeds Percentage no prepayment shall be 25.0% required in connection with any Prepayment Event under clause (e) of the defined term “Prepayment Event” if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate would not then be permitted pursuant to Section 8(y) of 100.0%the ABL Loan Agreement (as in effect on the Fifth Amendment Effective Date) and (z) the Borrowers shall be permitted to replace, repair, restore or rebuild Collateral that is subject to any casualty or other insured damage or any taking under power of eminent domain or by condemnation or similar proceeding of (and payments in lieu thereof), so long as (i) no Default or Event of Default has occurred and is continuing and (ii) any such Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date on account of such required prepayment is less than Prepayment Event not used to replace, repair, restore or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to rebuild such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries Collateral within 180 days after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with this Section 2.6(b)(i) and Section 2.6(c).
(ii) If all Commitments under (and as defined in) the requirements of Section 9.02(c)ABL Loan Agreement are terminated prior to the Scheduled Maturity Date under (and as defined in) the ABL Loan Agreement, and/or (z) Incremental Equivalent Debt incurred to refinance the Borrowers shall immediately prepay all or a portion of the Term Loans in accordance with the requirements of Section 6Loans.
Appears in 2 contracts
Sources: Loan and Security Agreement (Rubicon Technologies, Inc.), Loan and Security Agreement (Rubicon Technologies, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than On the fifth first Business Day following the receipt delivery of Net Proceeds in respect of any a Mandatory Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Notice from the Calculation Agent to the Borrower shall apply an amount equal (with a copy thereof to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to and the date any such prepayment is required to be made Lenders) stating that it does not intend to a Mandatory Prepayment Event has occurred (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall which need not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)continuing) (provided that, with respect subject to this clause (Ithe last sentence of Section 2.05(b), at if the Borrower’s election Calculation Agent fails to deliver such Mandatory Prepayment Notice by written notice to 6:00 p.m. on the Administrative Agent, expenditures and investments occurring prior to receipt of date the relevant Subject Proceeds (and not otherwise applied Mandatory Prepayment Event occurs, any Lender may deliver or cause to be delivered the Mandatory Prepayment Notice in respect of such Mandatory Prepayment Event to the Borrower (with a copy thereof to each other Lender and Agent) with the same effect as if such Mandatory Prepayment Notice was delivered by the Calculation Agent; provided, further, that any other prepayment required by this clause (ii)), but after failure to so deliver a copy of a Mandatory Prepayment Notice to any Lender or Agent shall not invalidate the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt effectiveness of such Subject ProceedsMandatory Prepayment Notice) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans Loans, together with all accrued interest thereon and shall pay any additional amounts required pursuant to Section 3.04 and any applicable Prepayment Amount, and all other Obligations (other than contingent obligations for which no claim has been made).
(b) For purposes of the delivery and receipt of any Mandatory Prepayment Notice (including under Section 10.02), (i) the Borrower consents to the delivery of such Mandatory Prepayment Notice by electronic communications and (ii) the Borrower’s “normal business hours” shall be 9:00 a.m. to 6:00 p.m., each Business Day. Notwithstanding anything to the contrary contained herein, in the event that a Mandatory Prepayment Event occurs following any Potential Adjustment Event, Issuer Merger Event or Spin-Off Event, then the Calculation Agent and the Other Applicable Indebtedness Lenders agree not to send a Mandatory Prepayment Notice until such time as Calculation Agent has made its (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant or, subject to the terms thereofand conditions of the proviso to this sentence, and the remaining amountRequired Lenders have made their) determination as to the appropriate adjustments, if any, of to be made to (i) the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down PeriodMinimum Price, (xii) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%)Maximum Share Number, (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) LTV Margin Call Level and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint ventureLTV Reset Level, in each case, solely in accordance with and subject to the provisions of Section 1.02(d); provided that, if the Calculation Agent fails to make its determination with respect to any joint venture such adjustments by 6:00 p.m. on the date the relevant Mandatory Prepayment Event occurs, the Required Lenders (provided that is a Restricted Subsidiarythe outstanding Loans held by, and unused Commitments of, the Calculation Agent and its Affiliates shall be excluded for so long as the distribution purposes of making such determination of Required Lenders) may make such adjustments, if any, in each case, in accordance with and subject to the Borrower provisions of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)1.02(d), and
(C) to with the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, same effect as if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced they were made by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveCalculation Agent.
(vc) At the Borrower’s optionSubject to Section 2.11(j), any Term Lender may elect, by notice prepayment described in this Section 2.05 shall be made to the Administrative Agent at or prior to for the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) ratable accounts of the definition thereof; provided that, for the avoidance Lenders. The Administrative Agent shall forward to each Lender its Ratable Share of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that each such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6payment.
Appears in 2 contracts
Sources: Margin Loan Agreement (Liberty Broadband Corp), Margin Loan Agreement and Collateral Account Control Agreement (Liberty Broadband Corp)
Mandatory Prepayments. In the event of any Principal Paydown or Payoff, Borrower shall be required to give Lender at least five (5) Business Days’ prior written notice of such Principal Paydown or Payoff and, on the date of such Principal Paydown or Payoff, Borrower shall be required to pay to Lender the following amounts: (a)
(i) [Reserved].
in the case of a Payoff, a payment of the entire principal balance of the Loan, accrued and unpaid interest thereon and all other Secured Obligations, (ii) No later than in the fifth Business Day following case of a Principal Paydown of the receipt Asset from a casualty or condemnation affecting the Mortgaged Property or during the continuance of Net Proceeds in respect an Event of any Prepayment Asset Sale Default or Net Insurance/Condemnation Proceeds andUnderlying Loan Event of Default, during any Scheduled Wind-Down Period, Net Proceeds a prepayment of all ordinary course asset sales, in each case, in excess principal of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount Loan equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, amount prepaid on the “Subject Proceeds”) to prepay Asset until the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) Loan is paid in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, full or (yiii) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating other Principal Paydown of the Asset, a prepayment of principal of the Loan equal to a sale or other event the product of (1) the amount prepaid and (2) Lender’s Pro Rata Percentage; (b) with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiaryany Underlying Prepayment Consideration, an amount determined by reference to pay Indebtedness the product of (i) any such Subsidiary)Underlying Prepayment Consideration received by Borrower from the Underlying Borrower in connection with such prepayment or payment, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect the Spread Ratio, (iii) Lender’s Pro Rata Percentage and (iv) a fraction, the numerator of which shall be the number of days from the Closing Date to the date of such Prepayment and the denominator of which shall be the number of days from the closing date of the Subject Proceeds Underlying Loan to the extent the Subject Proceeds are so applied within 18 months following receipt thereof date of such Prepayment (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above described in this clause (IIb), the “Prepayment Consideration”); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (Bc) if, at the time that in connection with any such prepayment would be required hereunderPrincipal Paydown or Payoff from a Permitted Transfer, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii)Exit Fee due thereon. Notwithstanding the foregoing, except during if in connection with the Payoff or a Scheduled Wind-Down PeriodPrincipal Paydown of the Asset, Borrower shall receive less than five (x5) Business Days’ notice thereof from the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior Underlying Borrower (or any Servicer or other Person) pursuant to the date related Underlying Loan Documents, then Borrower shall give Lender notice of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 within one (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y1) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any Business Day of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceedsnotice from the Underlying Borrower or other Person; it being understood and provided that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will any such notice shall be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines revocable in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the by Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) reason of the relevant Subject Proceeds, directly failure of the Underlying Borrower to make the applicable Payoff or indirectly, from Principal Paydown of the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent availableAsset, and not previously applied pursuant to this clause (C), no such revocation by Borrower under such circumstances shall be promptly applied to the repayment constitute an Event of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveDefault hereunder.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Loan and Security Agreement (TPG RE Finance Trust, Inc.), Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Subject to the fifth Business Day following proviso below, upon the receipt of Net Proceeds in respect occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearCasualty Event, the Borrower shall apply make a mandatory prepayment of the Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”%) of such the Net Proceeds or Net Insurance/Condemnation Cash Proceeds received with respect thereto in excess by the Borrower or any other Obligor as a result of such threshold Casualty Event, and (collectively, the “Subject Proceeds”y) to prepay the outstanding any accrued but unpaid interest on such principal amount of the Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowLoan being prepaid; provided that (A) so long as no Scheduled Wind-Down Period Default or Event of Default has occurred and is then in effect and continuing at the time the Borrower does not notify or any Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of any such Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent in writing prior a notice (each, a “Casualty Event Reinvestment Notice”) to the date any effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds from such prepayment is required Casualty Event to be made that it does not intend acquire, replace or rebuild the property subject to (I) reinvest (including such Casualty Event or to make capital expenditures) the Subject Proceeds cost of purchase or construction of other assets useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject then such Net Cash Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration Casualty Event may be applied for such purpose in lieu of the applicable periodsuch mandatory prepayment, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided further that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Net Cash Proceeds have not been so applied prior to within one hundred eighty (180) days following the expiration occurrence of the applicable periodsuch Casualty Event, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (make a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the mandatory prepayment of the Subject Loans and Term Loan in an aggregate amount equal to the Prepayment sum of (A) one hundred percent (100%) of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date unused balance of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Cash Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any other Obligor as a result of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01such Casualty Event, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), and (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay accrued but unpaid interest on such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryLoan being prepaid, as the case may beprovided, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directorsfurther, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise property subject to the relevant Subject ProceedsCasualty Event is Collateral, an amount equal to the Subject Proceeds to the extent availablethen any such acquired, and not previously applied pursuant to this clause (C)replaced, repaired, purchased or constructed property shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and Collateral in the manner specified by which the Administrative Agent, prior to any prepayment of Term Loans required to be made by for the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) benefit of the definition thereof; provided thatLenders, for has been granted a security interest under the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Security Documents.
Appears in 2 contracts
Sources: Credit Agreement and Guaranty (Icagen, Inc.), Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than If any term loan comprising US Permitted First Lien Indebtedness is incurred by Chrysler Group LLC, then, concurrently with the fifth Business Day following repayment of the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearUS Loans, the Borrower Loans shall apply be prepaid by an amount equal to 10020% (such percentage, as it may be reduced as described below, of the “Net Cash Proceeds Percentage”) of such Net Proceeds term loan (for the avoidance of doubt, prepayment is not required for any permitted revolving credit facility); provided, however, that such amount prepaid to Lender shall not exceed $200,000,000 (including any optional prepayment made by the Borrower hereunder); or Net Insurance/Condemnation Proceeds received with respect thereto (ii) if any Indebtedness described in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investmentsviii) of the Borrower definition of Permitted Indebtedness is incurred by any Secured Loan Party or if any of its Restricted Subsidiaries, then, the Borrower other Group Member shall not be required to make a mandatory prepayment under this incur Indebtedness as described in clause (iin) in respect of the Subject Proceeds definition of Permitted Indebtedness in the US First Lien Credit Agreement, then the Loans shall be prepaid, by an amount equal to the extent (x) Lender’s Pro Rata Share of the Subject Net Cash Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period receipt or incurrence. Prepayments hereunder shall be made (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)a) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiaryprepayment arising from the incurrence of debt of less than $25,000,000, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten no later than two Business Days after the date of such rejectionincurrence, and (b) be applied to prepay in the Subject Loans to case of a prepayment arising from the extent required in accordance with the terms incurrence of this Section 2.11(b)(ii). Notwithstanding the foregoingdebt of $25,000,000 or more, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to on the date of such required prepayment is less than or incurrence. Chrysler Group LLC shall concurrently make prepayments to the US Lender of the US Loans and reductions of the US Commitment in an aggregate amount equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the US Lender’s Pro Rata Share of the Net Cash Proceeds Percentage being calculated after giving pro forma effect to of any Indebtedness described in clause (ii). Any such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior accompanied by a notice to the date Lender specifying the amount of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date amount of such required prepayment is less than or equal to 0.25 to 1.00 (with concurrent payment of the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)US Loans.
(iiib) In the event that the Borrower or If on any of its Restricted Subsidiaries receives date any Secured Loan Party shall receive Net Cash Proceeds from the issuance any Asset Sale or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof within five (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A5) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the of receipt thereof by such Secured Loan Party of such Net Proceeds Cash Proceeds, the Loans shall be prepaid by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the amount of such Net Proceeds Cash Proceeds; provided that on each Reinvestment Prepayment Date, the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event. The provisions of this Section 2.07 do not constitute a consent to the consummation of any Disposition not permitted by Section 8.04.
(c) On the date that is the thirty-month anniversary of the Restatement Date, the Borrower shall prepay the Advances, firstly in respect of the Existing Loans and secondly in respect of the remaining Loans, in an amount equal to the Dollar Equivalent of US$500,000,000; provided that if, at such time, Chrysler Group LLC elects under the US First Lien Credit Agreement to extend the maturity date of up to US$400,000,000 of the Tranche B Loans (as defined under the US First Lien Credit Agreement) until June 10, 2017, the Borrower may elect, in its sole discretion, to reduce the mandatory prepayment required under this paragraph (c) by an amount up to US$100,000,000, by giving written notice to the Lender of its election to do so not later than ten Business Days prior to the thirty-month anniversary of the Restatement Date, setting forth the amount of the Tranche B Loans (as defined in the US First Lien Credit Agreement) with respect to which the maturity date is being extended and the corresponding amount of the mandatory prepayment under this paragraph (c) that is being reduced; provided further that the amount of the prepayment that may be reduced by the Borrower shall be calculated as the amount of the Tranche B Loans (as defined under the US First Lien Credit Agreement) with respect to which the maturity is being extended at such time divided by the Tranche B Commitment (as defined under the US First Lien Credit Agreement as of the date hereof) and multiplied by US$500,000,000.
(d) On the date that is the seventh anniversary of the Restatement Date, the sum of the Loans shall be mandatorily prepaid by an amount equal to (i) 50% of the Maximum Loan Amount minus (ii) the aggregate principal amount of optional or mandatory principal repayments of Loans made after the Restatement Date but prior to such date.
(e) Any amounts prepaid under this Section 2.07 shall be applied (i) first, to pay any fees and indemnity obligations owed to the Lender, (ii) second, to pay accrued and unpaid interest on, the obligations under the Loans and (iii) third, to repay the outstanding principal amount of any Loans until paid in full. (each a “Mandatory Prepayment”); provided that notwithstanding the relevant Class foregoing, no Mandatory Prepayment is required to be made in respect of Net Proceeds of any sale, transfer or Classes other disposition of Term Loans Capital Stock of the Borrower or of any direct or indirect parent of the Borrower as contemplated under any Permitted Restructuring Transaction. Upon receiving any Mandatory Prepayment in connection with the Disposition of Facility Collateral or concurrently with a Permitted Disposition, the Lender shall release its Lien thereon in accordance with clause (vi) below.
(iv) Notwithstanding anything Section 4.05. Unless and until all Advances have been paid in this Section 2.11(b) to full and all other Obligations have been satisfied, the contrary:
(A) the Borrower Lender shall not be required to prepay release its Lien on any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to Facility Collateral other than Facility Collateral for which the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving Disposition thereof gave rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveMandatory Prepayment.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Loan Agreement (Chrysler Group LLC), Loan Agreement (Chrysler Group LLC)
Mandatory Prepayments. (i) [Reserved].
Commencing with the fiscal year of the Borrower ending on or around January 31, 2026, within ten (ii10) No later than Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall apply shall, if the Borrower’s Excess Cash Flow is greater than $4,000,000, cause to be prepaid an aggregate principal amount of Term Loans (such aggregate amount, the “Excess Cash Flow Prepayment Amount”) equal to 100(A) 50% (such percentage, percentage as it may be reduced as described below, the “Net Proceeds ECF Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto the amount equal to Excess Cash Flow in excess of $4,000,000, if any, for the fiscal year covered by such threshold financial statements, minus (collectively, B) the “Subject Proceeds”sum of (1) all voluntary prepayments (including pursuant to prepay debt buybacks made by the outstanding principal Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans then subject to that are permitted hereunder during such fiscal year and, at the Borrower’s election, all such voluntary prepayments made after the end of such fiscal year and through the date of such prepayment requirements (the “Subject Loans”) including such mandatory prepayment), in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior each case to the date any extent such prepayment is required to be made that it does prepayments are not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) funded from long-term Indebtedness of either of the Borrower or any of its Restricted SubsidiariesSubsidiaries or any Cure Amount, then(2) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year and, at the Borrower shall not be Borrower’s election, all such voluntary prepayments made after the end of such fiscal year but prior to the time that the prepayment required to make a mandatory prepayment under by this clause (iib)(i) is made, to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and to the extent such prepayments are not funded with the proceeds of Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) or any Cure Amount, (3) without duplication of amounts deducted pursuant to clause (4) below in respect of such period or clause (6) below in prior fiscal years, the Subject Proceeds amount of Capital Expenditures or acquisitions made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans), (4) without duplication of amounts deducted pursuant to clause (3) above in respect of such period or clause (6) below in prior periods, the amount of Investments and acquisitions made during such period pursuant to Section 7.02 (other than Section 7.02(a), (d), (n), (v) and (x)) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans), (5) the Subject Proceeds are so reinvested within 18 months following receipt thereofamount of Restricted Payments paid during such period pursuant to Section 7.06 (other than Section 7.06(a) (solely in respect of amounts paid to the Borrower or a Restricted Subsidiary), (b), (k), (m) and (n)) except to the extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries (yother than revolving loans) and (6) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries has committed pursuant to so reinvest binding contracts (the Subject Proceeds “Contract Consideration”) entered into prior to or during such 18 month period and relating to Permitted Acquisitions, Capital Expenditures, Investments, Restricted Payments or acquisitions to be consummated or made during the Subject Proceeds are so reinvested within 180 days after period of four consecutive fiscal quarters of the expiration Borrower following the end of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior except to the expiration extent intended to be financed with the proceeds of an incurrence or issuance of other Indebtedness of the applicable periodBorrower or its Restricted Subsidiaries (other than revolving loans) (provided, that, to the Borrower shall promptly prepay extent the Subject Loans with aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures, Investments, Restricted Payments or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of Subject Proceeds not so reinvested as set forth above such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters); provided, that, (x) the ECF Percentage shall be reduced to 25% if the LQA Recurring Revenue Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 0.50:1.00 and greater than or equal to 0.25:1.00 and (y) the ECF Percentage shall be reduced to 0% if the LQA Recurring Revenue Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 0.25:1.00; provided, further, that, to the extent the amount described in this the preceding clause (I)B) (provided that, with in respect of any fiscal year exceeds the amount of Excess Cash Flow required to this clause (I)be utilized to prepay Term Loans in respect of such fiscal year, at the Borrower’s election sole option, such excess shall be carried over to any succeeding fiscal year and shall reduce any Excess Cash Flow Prepayment Amount on a dollar-for-dollar basis for such succeeding fiscal year;
(ii) (A) Subject to Section 2.05(b)(ii)(B), if following the Closing Date (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets pursuant to Section 7.05(i), (l), (m) and (o), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided, that, (1) no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent, expenditures and investments occurring prior Agent of their intent to receipt of the relevant Subject Proceeds (and not otherwise applied reinvest in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceedsaccordance with Section 2.05(b)(ii)(B) or, or (II) apply until the Subject aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or such prepayment exceeds $5,000,000 in the case of any aggregate during such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness fiscal year (and thereafter only amounts in excess of such Subsidiary), then, the Borrower thresholds shall not be required to make a mandatory prepayment under this clause (iibe prepaid) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B2) if, if at the time that any such prepayment would be required hereunderrequired, the Borrower or any of its Restricted Subsidiaries is are required to Prepay offer to repurchase or prepay any other Indebtedness that is secured on by a Lien ranking pari passu basis with the Obligations by Liens securing the Term Loans pursuant to the terms of the documentation governing such other Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such other IndebtednessIndebtedness required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the relevant Person Borrower may apply the Subject such Net Cash Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time)) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; it being understood that provided, that, (1a) the portion of the Subject such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject such Net Cash Proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly hereof and (2b) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidindebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten five (5) Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) belowhereof.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Mandatory Prepayments. (a) If a Change of Control occurs, then within fifteen (15) days of such Change of Control, (i) [Reserved].
the Mandatory Prepayment Amount shall become automatically due and payable without any notice or other action from the Trust; (ii) No later than the fifth Business Day following Utility shall pay the receipt of Net Proceeds in respect of any Trust the Mandatory Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) orAmount, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2iii) to the extent the holders Mandatory Prepayment Amount is not paid in full on such date, and the LC has been issued and is outstanding pursuant to Section 2.2(a) hereof, the Trust may draw on the LC up to the lesser of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidstated amount thereof and the unpaid portion of the Mandatory Prepayment Amount, and (iv) the Utility shall provide the Trust with a statement prepared by the Utility in good faith and in consultation with the Utility Accounting Firm setting forth, in reasonable detail, the declined amount shall promptly (and in any event within ten Business Days after the date calculation of such rejection) be applied to prepay the Subject Loans to the extent required payment in accordance with this Agreement along with supporting schedules as well as the terms identification of this Section 2.11(b)(ii). Notwithstanding any material assumptions that were utilized in preparing such calculation.
(b) If a Financing Event occurs, then (i) the foregoing, except during a Scheduled Wind-Down Period, Mandatory Prepayment Amount shall become automatically due and payable without any notice or other action from the Trust upon the later of (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 First Payment Date and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) fifteen (15) days after the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date consummation of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 Financing Event; (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (zii) the Net Proceeds Percentage Utility shall be 0.0% if pay the Total Debt to Equity Ratio for Trust on the Test Period most recently ended prior to the applicable payment date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans as determined pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vii) below.
(ivimmediately above) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds Mandatory Prepayment Amount, (iii) to the extent availablethe Mandatory Prepayment Amount is not paid in full on such date, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans LC has been issued and is outstanding pursuant to Section 2.11(b2.2(a) as otherwise required above.
(v) At hereof, the Borrower’s option, any Term Lender Trust may elect, by notice draw on the LC up to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) lesser of the definition thereof; provided that, for stated amount thereof and the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a unpaid portion of the Term Loans pursuant to Section 6.01(p)Mandatory Prepayment Amount, and (xiv) Incremental Term Loans incurred to refinance all or the Utility shall provide the Trust with a portion statement prepared by the Utility in good faith and in consultation with the Utility Accounting Firm setting forth, in reasonable detail, the calculation of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans such payment in accordance with this Agreement along with supporting schedules as well as the requirements identification of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans any material assumptions that were utilized in accordance with the requirements of Section 6preparing such calculation.
Appears in 2 contracts
Sources: Tax Benefit Payment Agreement (PG&E Corp), Tax Benefit Payment Agreement
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Administrative Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrowers shall prepay the outstanding principal amount of Subject Loans that are Term B Loans in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Administrative Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Administrative Borrower, (x) the aggregate principal amount of (I) any Term Loan and/or any Revolving Loan (and in the case of the Revolving Loans, to the extent such prepayment is accompanied by a permanent reduction of the applicable Revolving Credit Commitment) prepaid pursuant to Section 2.11(a) prior to such date and (II) any Incremental Equivalent Debt and/or Replacement Debt voluntarily prepaid, repurchased, redeemed or otherwise retired prior to such date and (y) the amount of any reduction in the outstanding principal amount of any Term Loan resulting from any purchase or assignment made in accordance with Section 9.05(f) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash paid in connection with the relevant purchase or assignment and excluding any such optional prepayment, repurchase, redemption or retirement made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant Revolving Credit Commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other long term funded Indebtedness (other than revolving Indebtedness) of the Administrative Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b)(i) shall be required unless and to the extent that the amount thereof exceeds $30,000,000; provided, further, that if at the time that any such prepayment would be required, the Administrative Borrower (or any Restricted Subsidiary of the Administrative Borrower) is also required to prepay, repay or repurchase or offer to repurchase any Indebtedness that is secured on a pari passu basis with any Secured Obligation that is secured on a first lien basis pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Administrative Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and the relevant Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to such Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term B Loans in accordance with the terms hereof) to the prepayment of the Term B Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term B Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of such Other Applicable Indebtedness decline to have such indebtedness prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term B Loans in accordance with the terms hereof.
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearProceeds, the Borrower Borrowers shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Required Net Proceeds Percentage”) Percentage of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such the threshold contained in the proviso to this clause (b)(ii) (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if prior to the date any such prepayment is required to be made that it does not intend made, the Administrative Borrower notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Administrative Borrower or any of its Restricted Subsidiaries, thenthen so long as no Event of Default then exists, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months 450 days following receipt thereof, or (y) the Administrative Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month 450-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (450-day period; it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower Borrowers shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceedsimmediately preceding proviso) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Administrative Borrower or any of its Restricted Subsidiaries is required to Prepay prepay, repay or repurchase (or offer to repurchase) any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment prepayment, repurchase or repayment of the such Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the such Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the such Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the such Other Applicable Indebtedness pursuant to the terms thereof, thereof (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the such Other Applicable Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of hereof; provided, however, the obligation to make a prepayment under this Section 2.11(b)(ii). Notwithstanding ) shall only apply if and to the foregoing, except during a Scheduled Wind-Down Period, (x) extent the aggregate amount of Net Proceeds Percentage shall be 50.0% if resulting from Prepayment Asset Sales and Net Insurance/Condemnation Proceeds received by the Total Debt to Equity Ratio for the Test Period most recently ended prior Administrative Borrower and its Restricted Subsidiaries as a result of event giving rise to the date of such required relevant prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)obligations exceeds $100,000,000.
(iii) In the event that the Administrative Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Administrative Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including any Replacement NotesDebt) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay repay such Indebtedness), the Borrower Borrowers shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiaryrelevant Person, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the applicable portion of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above to the extent that the relevant Prepayment Asset Sale affected Excess Cash Flow is consummated generated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the Administrative Borrower determines in good faith that the repatriation to the Administrative Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise Administrative Borrower hereby agreeing to cause the relevant Subject Proceeds, the Borrower shall applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (; it being understood that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds Proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil personal or criminal liability for the Persons described above, in either case, an amount equal within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to such the relevant Subject Proceeds Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes that would be payable or reserved against such Excess Cash Flow or Subject Proceeds as a result of repatriating such amountsthereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the Administrative Borrower determines in good faith that the distribution to the Administrative Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceedsventure; it being understood that if the relevant prohibition ceases to existexist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)),
(C) the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary that is not a Loan Party or the relevant Subject Proceeds are received by any Foreign Subsidiary that is not a Loan Party, in each case, for so long as the Administrative Borrower determines in good faith that the distribution to any Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under an agreement permitted pursuant to Section 6.05 by which such Foreign Subsidiary is bound governing any Indebtedness; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(CD) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Administrative Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary any Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above that are attributable to any Foreign Subsidiary would result in a material and adverse Tax liability (taking into account including any withholding Tax) (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), the amount that the Borrower shall be Borrowers are required to mandatorily prepay pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly Proceeds or indirectly, Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365 365-day period following the event giving rise to the relevant Subject ProceedsProceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, and not previously applied pursuant to this clause (CD), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower Borrowers pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofBorrowers; provided that, that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement NotesDebt) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), ) and/or (z) Incremental Equivalent Debt incurred to refinance finance all or a portion of the Term Loans in accordance with the requirements of Section 6.r
Appears in 2 contracts
Sources: Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Upon the fifth Business Day following the receipt of Net Proceeds in respect occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, the events set forth in each case, in excess Section 2.1 of $15,000,000 in any Fiscal Yearthe Common Agreement, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) required to prepay the outstanding Advances, as set forth in Section 2.1 of the Common Agreement. All such prepayments shall be made in the manner set forth in Section 2.1 of the Common Agreement, together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 8.06(c). Amounts prepaid pursuant to this Section 2.06 and Section 2.1 of Term Loans then subject the Common Agreement may not be reborrowed. Amounts prepaid pursuant to prepayment requirements this Section 2.06 and Section 2.1 of the Common Agreement shall be applied on a pro rata basis across maturities to the Advances held by each Lender, unless otherwise specified in Section 2.1 of the Common Agreement.
(the “Subject Loans”b) in accordance with clause On each Test Date (vi) as defined below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and ), the Borrower does not shall notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any Gross Principal Due (as defined below) and the Cash Resources Available (as defined below), in each case as of its Restricted Subsidiariessuch Test Date. If, thenon either Test Date, the Gross Principal Due exceeds the Cash Resources Available, in each case as of such Test Date, the Borrower shall not be required to make a mandatory prepayment under this clause shall, no later than forty-five (ii45) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period applicable Test Date (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration “Mandatory Prepayment Date”) prepay all of the applicable periodAdvances of all of the Lenders, provided that any Lender (each, a “Waiving Lender”) may, on or before the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided thatMandatory Prepayment Date, with respect to this clause (I), at the Borrower’s election by written notice to the Borrower (with a copy to the Administrative Agent, expenditures and investments occurring prior ) (a “Mandatory Prepayment Waiver Notice”) waive the requirement pursuant to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other this Section 2.06(b) for such mandatory prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness the Advances of such Subsidiary)Waiving Lender, thenwhereupon the Borrower shall have no obligation to prepay the Advances of such Waiving Lender. Immediately after receipt thereof, the Administrative Agent shall provide a copy of each Mandatory Prepayment Waiver Notice to each Lender. On the Mandatory Prepayment Date, the Borrower shall not prepay the Advances of all Lenders (other than each Waiving Lender) . All such prepayments shall be required made to make a mandatory prepayment under this clause (ii) the Lenders entitled thereto pro rata and shall otherwise be paid in respect the manner set forth in Section 2.1 of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales Common Agreement. Such prepayments shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event made together with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior accrued interest to the date of such required prepayment is less than or equal to 0.75 to 1.00 on the principal amount prepaid and greater than 0.50 to 1.00 (together with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans amounts owing pursuant to Section 6.01(p), (B8.06(c) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans prepayment. Amounts prepaid pursuant to this Section 2.11(b2.06(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall may not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to reborrowed. For the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower purposes of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.2.06(b):
Appears in 2 contracts
Sources: Tranche F Credit Agreement (Digicel Group LTD), Tranche G Credit Agreement (Digicel Group LTD)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Until no Term Loans remain outstanding, and in the fifth Business Day following the receipt of event and on each occasion that any Net Proceeds are received by or on behalf of Parent or any other Group Member in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearEvent, the Borrower shall apply shall, (x) within five Business Days after such Net Proceeds are received by Parent or any other Group Member that is a Domestic Subsidiary or (y) within 90 days after such Net Proceeds are received by any Group Member that is a Foreign Subsidiary, prepay the Term Loans as set forth in paragraph (v) below in an aggregate amount equal to (A) in the case of a Prepayment Event described in clause (c) of the definition of the term “Prepayment Event”, 50.0% of such Net Proceeds, (B) in the case of a Prepayment Event of the type described in clause (d)(ii) of the definition of the term “Prepayment Event”, 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto attributable to the Excess Indebtedness Amount, and (C) in excess the case of all other Prepayment Events, 100% of such threshold (collectivelyNet Proceeds; provided that, in the “Subject Proceeds”) to prepay the outstanding principal amount case of Term Loans then subject to prepayment requirements (the “Subject Loans”) any event described in accordance with clause (via) below; provided that or (Ab) so long as no Scheduled Wind-Down Period is then in effect and of the definition of the term “Prepayment Event”, if the Borrower does not notify shall deliver to the Administrative Agent in writing prior a certificate of a Financial Officer to the date effect that Parent or any of its Restricted Subsidiaries intend to apply the Net Proceeds from such prepayment is required event (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 made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds used in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower Parent or any of its Restricted Subsidiaries, then, the Borrower so long as no Default has occurred and is continuing, no prepayment shall not be required pursuant to make a mandatory prepayment under this clause (ii) paragraph in respect of the Subject Net Proceeds specified in such certificate; provided further that (1) to the extent (x) any such Net Proceeds therefrom have not been so applied by the Subject Proceeds are so reinvested within 18 months following receipt thereofend of such 180-day period, or (y) a prepayment shall be required on the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days first Business Day after the expiration of such 18 month period (it being understood in an amount equal to such Net Proceeds that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders aggregate Net Proceeds resulting from Prepayment Events of the Other Applicable Indebtedness decline to type described in clause (a) of the definition thereof received by the Group Members that have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be not been applied either to prepay the Subject Term Loans or to the extent required acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding 3.04(c)(i) exceeds $35,000,000 at any given time, the foregoing, except during a Scheduled Wind-Down PeriodBorrower shall, (x) the within five Business Days if such excess Net Proceeds Percentage are held by Parent or any other Group Member that is a Domestic Subsidiary or (y) within 90 days if such excess Net Proceeds are held by any Group Member that is a Foreign Subsidiary, prepay the Term Loans as set forth in paragraph (v) below in an aggregate amount equal to such excess.
(ii) Until no Term Loans remain outstanding, the Borrower shall prepay the Term Loans as set forth in paragraph (v) below on the date that is ten days after the earlier of (A) the date on which Parent’s annual audited financial statements for the immediately preceding Fiscal Year are delivered pursuant to Section 8.01(a) and (B) the date on which such annual audited financial statements were required to be 50.0% delivered pursuant to Section 8.01(a), in an amount equal to (1) if the Total Debt Leverage Ratio as of the last day of the Testing Period ending on the last day of such Fiscal Year is greater than 3.00 to Equity Ratio 1.00, 50% of Excess Cash Flow for the Test immediately preceding Fiscal Year or (2) if the Total Leverage Ratio as of the last day of the Testing Period most recently ended prior to ending on the date last day of such required Fiscal Year is greater than 2.50 to 1.00 but less than or equal to 3.00 to 1.00, 25% of Excess Cash Flow for the immediately preceding Fiscal Year, in each case as set forth in paragraph (v) below. Each Excess Cash Flow prepayment shall be accompanied by a certificate signed by a Financial Officer certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to Administrative Agent. For the avoidance of doubt, if the Total Leverage Ratio as of the last day of the Testing Period ending on the last day of any Fiscal Year is less than or equal to 0.75 2.50 to 1.00 and greater than 0.50 1.00, the Borrower shall have no obligation to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect prepay any outstanding Term Loans pursuant to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%this Section 3.04(c)(ii).
(iii) In the event that Until no Term Loans remain outstanding, the Borrower or any shall repay the Term Loans as set forth in paragraph (v) below on each anniversary of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Initial Availability Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except in an amount equal to the extent the relevant Indebtedness constitutes lesser of (A) Refinancing Indebtedness $12,250,000 and (including Replacement NotesB) incurred the outstanding principal balance of the Term Loans.
(iv) If, after giving effect to refinance any termination or reduction of the Aggregate Revolving Commitments pursuant to Section 2.06(b) or if for any other reason, the Total Revolving Credit Exposure exceeds the Aggregate Revolving Commitments, then the Borrower shall (A) prepay Borrowings on such date in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all or of the Borrowings as a portion result of any Class an LC Exposure, pay to the Administrative Agent on behalf of the Revolving Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.07(e).
(A) Each prepayment of Term Loans pursuant to Section 6.01(p)paragraphs (i) through (iii) above shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any LIBOR Borrowings then outstanding, and if more than one LIBOR Borrowing is then outstanding, to each such LIBOR Borrowing in such order as the Borrower shall elect and (B) Incremental Term Loans incurred to refinance all or a portion each prepayment of any Class of Term Revolving Loans pursuant to paragraph (iv) above shall be applied, first, to any Swingline Loans then outstanding, second, ratably to any ABR Borrowings then outstanding, and, third, to any LIBOR Borrowings and EURIBOR Borrowings then outstanding, and if more than one LIBOR Borrowing or EURIBOR Borrowing is then outstanding, to each such LIBOR Borrowing or EURIBOR Borrowing in such order as the Borrower shall elect.
(vi) Prepayments pursuant to this Section 2.22, (C3.04(c) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case shall be accompanied by accrued interest to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (Section 3.02 and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions prepayment premium required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv3.04(d))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Mandatory Prepayments. The Borrower shall provide written notice to the Agent by 1:00 p.m. (New York time) one Business Day prior to any mandatory prepayment hereunder. In addition to any prepayment required in accordance with Section 10.2 as a result of an Event of Default hereunder, the Loans shall be subject to mandatory prepayment as follows:
(i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or any Subsidiary from all Asset Dispositions permitted by Section 8.5(l) or Casualty Events within three (such percentage, as it may be reduced as described below, 3) Business Days of the “Net Proceeds Percentage”) receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of by such threshold (collectivelyPerson; provided, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided however, that (A) so long as no Scheduled Wind-Down Period is then in effect Event of Default shall have occurred and the Borrower does not notify the Administrative Agent in writing prior to the date any be continuing, such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Net Cash Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect be so applied at the election of the Subject Proceeds Borrower to the extent such Loan Party or such Subsidiary reinvests, within twelve (x12) the Subject Proceeds are so reinvested within 18 months following of receipt thereofof such Net Cash Proceeds, or (y) the Borrower all or any portion of such Net Cash Proceeds in assets used in the business of the Loan Parties and their Subsidiaries; provided that if, prior to the expiration of such twelve (12) month period, the Borrower, directly or through its Restricted Subsidiaries has committed Subsidiaries, shall have entered into a binding agreement providing for such investment on or prior to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days date that is six (6) months after the expiration of such 18 twelve (12) month period, such twelve (12) month period shall be extended to an eighteen (it being understood that 18) month period; provided further, if the Subject such Net Cash Proceeds shall have not been so reinvested prior to the expiration of the applicable periodreinvested, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Cash Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be immediately applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding Loans; provided further, that, notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage no such prepayment shall be 50.0% required if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment aggregate Net Cash Proceeds received in any calendar year from Asset Dispositions and Casualty Events is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 $5,000,000 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage which amount shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date increased by any unused portion of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with $5,000,000 exclusion from the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%immediately preceding year).,
(iiii) In Immediately upon the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness receipt by the Borrower or any Material Subsidiary of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion Net Cash Proceeds of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Prohibited Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z)Issuance, in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an aggregate amount equal to 100% of such Net Proceeds to prepay Cash Proceeds.
(ii) the entire outstanding principal amount of the relevant Class or Classes of Term Loans in accordance Loans, together with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the all accrued and unpaid interest thereon and all fees and Lender Group Expenses payable by Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicablehereunder, shall be reduced by become due and payable on the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveTermination Date.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Team Inc), Term Loan Credit Agreement (Team Inc)
Mandatory Prepayments. (a) Unless the Required Lenders shall otherwise agree, if any Loan Party or any Subsidiary shall incur any Indebtedness (other than Permitted Indebtedness), then upon receipt Borrower shall apply such Net Cash Proceeds to (i) [Reserved]prepay the principal amount of the Loans or (ii) repay amounts required to be repaid under the First Lien Credit Agreement as the result of any borrowing base deficiency or optionally prepay the principal amount of loans under the First Lien Credit Agreement provided the commitments under the First Lien Credit Agreement are permanently reduced by an equal amount. The provisions of this Section 2.7(a) do not constitute a consent to the incurrence of any Indebtedness by any Loan Party.
(b) Unless the Required Lenders shall otherwise agree, if on any date any Loan Party shall receive Net Cash Proceeds from any Disposition (other than a Disposition pursuant to Section 6.5(h)) or any Purchase Price Refund, then upon receipt Borrower shall apply such Net Cash Proceeds to (i) prepay the principal amount of the Loans or (ii) repay amounts required to be repaid under the First Lien Credit Agreement as the result of any borrowing base deficiency or optionally prepay the principal amount of loans under the First Lien Credit Agreement provided the commitments under the First Lien Credit Agreement are permanently reduced by an equal amount. The provisions of this Section do not constitute a consent to the consummation of any Disposition.
(c) Unless the Required Lenders shall otherwise agree, if on any date Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Disposition pursuant to Section 6.5(h), then:
(i) unless prior to such date Borrower has delivered to Agent a Reinvestment Notice with respect thereto, on the date that is five Business Days after such receipt thereof Borrower shall apply such Net Cash Proceeds to (i) prepay the principal amount of the Loans or (ii) repay amounts required to be repaid under the First Lien Credit Agreement as the result of any borrowing base deficiency or optionally prepay the principal amount of loans under the First Lien Credit Agreement provided the commitments under the First Lien Credit Agreement are permanently reduced by an equal amount; and
(ii) No later than in the fifth Business Day following the receipt of event Borrower delivers to Agent a Reinvestment Notice with respect to such Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andCash Proceeds, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “aggregate Net Cash Proceeds Percentage”) less the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectivelyCash Proceeds, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if any, expended prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required relevant Reinvestment Prepayment Date to make a mandatory prepayment under this clause Qualified Investment to (iii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness or (or accreted amount if such Other Applicable Indebtedness is issued with original issue discountii) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds repay amounts required to be allocated to repaid under the Other Applicable Indebtedness pursuant to First Lien Credit Agreement as the terms thereof, and result of any borrowing base deficiency or optionally prepay the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the principal amount of loans under the First Lien Credit Agreement provided the commitments under the First Lien Credit Agreement are permanently reduced by an equal amount.
(d) Each prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b2.7 shall be applied in accordance with Section 2.9 and shall be accompanied by a cash payment of the accrued interest (whether accrued as Cash Interest or PIK Interest) to the extent required herein (without regard to Prepayment Date on the principal amount prepaid together with all other amounts then owing under this clause (iv))),
(B) the Borrower shall not be required to prepay Agreement or any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by Loan Document including any joint venture, in each case, solely with respect to fees and expenses then due and payable under any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation Loan Document. Each prepayment of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Tranche A Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)Sections 2.7(a), and
(C2.7(b) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution2.7(c) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced accompanied by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) concurrent payment of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveApplicable Premium.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Mandatory Prepayments. (i) [Reserved]No later than the fifth (5th) Business Day after the date on which the financial statements with respect to each Fiscal Year of the Parent Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or around December 31, 2022, the Parent Borrower shall prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Parent Borrower and its Restricted Subsidiaries for the Calculation Period then ended, minus (B) $15,000,000 minus (C) unless otherwise elected by the Parent Borrower (in which case any such amount shall be deducted from the calculation of Excess Cash Flow instead), the aggregate principal amount optionally or voluntarily Prepaid (to the extent permitted under this Agreement and without duplication of the amount thereof applied to reduce the ECF Prepayment Amount in the prior Fiscal Year) prior to such date of (1) any Initial Term Loans, any other Term Loans, Incremental Equivalent Debt or any Additional Revolving Loans prepaid pursuant to Section 2.11(a), any ABL Loans and any Permitted Senior Secured Debt, and (2) any Replacement Notes, based upon the actual amount of cash paid in connection with the relevant assignment or purchase, except, in each case, to the extent financed with Long-Term Funded Indebtedness; provided that, in each case, with respect to the ABL Facility, any Incremental Revolving Facility and any Replacement Revolving Facility, to the extent accompanied by a permanent reduction in the relevant commitment, minus (D) all Cash payments in respect of capital expenditures as would be reported in the Parent Borrower’s consolidated statement of cash flows made during such Calculation Period and, at the option of the Parent Borrower, in the case of any Calculation Period, any Cash payments in respect of any such capital expenditures made prior to the date of the Excess Cash Flow payment in respect of such Calculation Period, except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (E) Cash payments made during such Calculation Period (or, at the option of the Parent Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the applicable Excess Cash Flow payment) in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 (including Investments in joint ventures, but excluding Investments in (x) Cash and Cash Equivalents and (y) the Parent Borrower or any of its Restricted Subsidiaries), except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (F) unless otherwise elected by the Parent Borrower (in which case any such amount shall be deducted from the calculation of Excess Cash Flow instead), Cash payments made during such Calculation Period (or, at the option of the Parent Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the applicable Excess Cash Flow payment) in respect of Restricted Payments made under Sections 6.04(a)(i), (ii), (iv), (v), (viii)(B), (xi), (xiii) and (xv). Notwithstanding the foregoing, (I) if at the time that any such prepayment would be required, the Parent Borrower (or any other Restricted Subsidiary of the Parent Borrower) is also required to Prepay any Indebtedness that is secured on a pari passu basis with the First Priority Secured Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so Prepaid, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Parent Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time) to the Prepayment of such Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof and (II) to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (unless such other application is otherwise permitted hereunder).
(ii) No later than the fifth (5th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and(in each case, during any Scheduled Wind-Down Period, excluding Net Proceeds of all ordinary course asset salesattributable to (x) the Performance Chemicals Sale or (y) ABL Priority Collateral), in each case, in excess of $15,000,000 30,000,000 in the aggregate in any Fiscal YearYear (in each case, the amount of such excess, the “Subject Proceeds”; provided that, any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds the Net Proceeds of which are less than $20,000,000 with respect to any single event or transaction (or series of related events or transactions) shall not be subject to this Section 2.11(b)(ii)), the Parent Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Asset Sale Prepayment Percentage of such Net Subject Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Subject Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided provided, that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if, prior to the date any such prepayment is required to be made that it does not intend made, the Parent Borrower notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Parent Borrower or any of its Restricted Subsidiariessubsidiaries, thenthen so long as no Event of Default then exists, the Parent Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (xA) the Subject Proceeds are so reinvested within 18 fifteen (15) months following receipt thereof, thereof or (yB) the Parent Borrower or any of its Restricted Subsidiaries subsidiaries has committed to so reinvest the Subject Proceeds during such 18 15-month period and the Subject Proceeds are so reinvested within 180 days six (6) months after the expiration of such 18 15-month period (it being understood period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Parent Borrower shall promptly prepay the outstanding principal amount of Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agentimmediately preceding proviso); provided, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii))further, but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any that (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Parent Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment Prepay of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time)); it being understood provided, further, that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii)hereof. Notwithstanding anything to the foregoingcontrary herein or in any other Loan Document, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage of any Disposition of any ABL Collateral shall not be 50.0% if the Total Debt required to Equity Ratio for the Test Period most recently ended prior be applied to the date prepayment of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Initial Term Loans hereunder.
(iii) In the event that the a Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the such Borrower or any of its Restricted Subsidiaries after the Closing Date (other than with respect to Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) Term Loans, Replacement Revolving Facility or Replacement Notes incurred to refinance all or a portion of any Class or Classes of Term Loans pursuant to Section 6.01(p), (Bas determined by such Borrower) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c)), or (B) and/or (D) Incremental Loans or Incremental Equivalent Debt incurred to refinance all or a portion of any Class or Classes of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such IndebtednessTerm Loans and such Incremental Loans or Incremental Equivalent Debt do not constitute utilization of the Incremental Cap pursuant to Section 2.22), the such Borrower shall, promptly upon (and in any event not later than five the next succeeding Business Days thereafterDay) the receipt thereof of such Net Proceeds by the such Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:,
(A) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower Borrowers of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely during the period within 365 days one (1) year following the event giving rise date such prepayments are required to the relevant Subject Proceedsbe made, the Borrower Borrowers shall, and shall cause the applicable Foreign Subsidiary to, promptly use commercially reasonable efforts to take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that and if after taking such actions, the repatriation of the relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or could reasonably be reasonably expected to result in, a material risk of personal, civil personal or criminal liability for the Persons described aboveabove within one (1) year following the date such prepayments are required to be made, in either case, an amount equal to such the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iviv)(A))),) or the Parent Borrower or another subsidiary may, at its option, apply to such repayment an equivalent amount with the Foreign Subsidiary not repatriating the actual Subject Proceeds or Excess Cash Flow; and
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Parent Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend Borrower of any amounts required to mandatorily prepay the Initial Term Loans and other Term Loans pursuant to Section 2.11(b)(ii2.11(b)(i) or (ii) above would result in any Parent Company, Holdings, a Borrower or any Restricted Subsidiary incurring material Tax liabilities (including any material withholding Tax) or material adverse Tax liability consequences (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), as reasonably determined by the Parent Borrower, the amount that the a Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted AmountAmount until such time as the Restricted Amount may be repatriated (or otherwise distributed) to a Borrower without the incurrence of such material Tax liability or material adverse Tax consequences (each, as determined in good faith by the Parent Borrower); provided provided, that to the extent that the repatriation (or other intercompany distribution) of the relevant any Subject Proceeds, directly Proceeds or indirectly, Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material Tax liability or material adverse tax consequence Tax consequences within the 365 day period one (1) year following the event giving rise date such prepayments are required to the relevant Subject Proceedsbe made, an amount equal to the Subject Proceeds to the extent availableor Excess Cash Flow, and as applicable, not previously applied pursuant to this preceding clause (CB), shall be promptly applied to the repayment of the applicable Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above.above (without regard to this clause (iv)(B));
(v) At the Borrower’s option, any Term Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower Borrowers pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that (A) to the extent that any such prepayment is declined, in which case such Declined Proceeds the remaining amount thereof may be retained by the Borrower Borrowers and will be added to the Available Amount as set forth in clause (a)(vB) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with Indebtedness described in clauses (A) or (B) of Section 2.11(b)(iii) above. If any Lender fails to deliver a notice to the Net Proceeds Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(wvi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all Initial Term Loans or any portion of the Additional Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), and/or (zB) Incremental Equivalent Debt incurred with respect to refinance each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or a portion (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Term Loans in accordance with the requirements of Section 6.Initial T
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearIf Indebtedness is incurred by Parent, the Borrower shall apply or any of its Restricted Subsidiaries (other than Indebtedness permitted under Section 6.2), then no later than two Business Days after the date of such issuance or incurrence, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied to the “Net Proceeds Percentage”) prepayment of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”together with accrued and unpaid interest thereon) as set forth in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does Section 2.15(e). The provisions of this Section do not notify the Administrative Agent in writing prior constitute a consent to the date incurrence of any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (includingIndebtedness by Parent, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries.
(b) If on any date Parent, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, no later than five Business Days (or, if a Default or Event of Default has committed to so reinvest the Subject Proceeds during such 18 month period occurred and the Subject Proceeds are so reinvested within 180 days is continuing, three Business Days) after the expiration date of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable periodreceipt by Parent, the Borrower shall promptly prepay the Subject Loans with or any of its Restricted Subsidiaries of such Net Cash Proceeds, an amount equal to the amount of Subject such Net Cash Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the prepayment of the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or together with accrued and unpaid interest thereon) as set forth in Section 2.15(e); provided that (i) notwithstanding the case of any such proceeds relating foregoing, on each Reinvestment Prepayment Date an amount equal to a sale or other event the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon), (ii) the provisions of this Section do not constitute a Restricted Subsidiary that is consent to the consummation of any Disposition not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights permitted by Section 6.5 and (Biii) if, if at the time that any such prepayment would be required hereunderrequired, the Borrower or any of its Restricted Subsidiaries is required to, or to Prepay any other offer to, repurchase or redeem or repay or prepay Permitted Term Loan Refinancing Indebtedness that is secured on a pari passu basis with the Obligations by pursuant to the terms of the documentation governing such other Indebtedness with proceeds of such Asset Sale or Recovery Event (such other IndebtednessPermitted Term Loan Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”)), then the relevant Person Borrower may apply the Subject such Net Cash Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.15(b) shall be reduced accordingly and (2) accordingly; provided further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidindebtedness repurchased or repaid with such net proceeds, the declined amount of such net proceeds shall promptly (and in any event within ten 10 Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements terms hereof (to the extent such net proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Borrower shall apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow minus (ii) the Optional Prepayment Amount (if any) for such Excess Cash Flow Period to the prepayment of the Term Loans (together with accrued interest thereon), as set forth in Section 9.02(c2.15(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) and/or no later than ten days after the earlier of (Di) Incremental Equivalent Debt the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(d) The Borrower shall apply, on a dollar-for-dollar basis, all of the Net Cash Proceeds of any Replacement Term Loans and the Net Cash Proceeds of any Permitted Term Loan Refinancing Indebtedness (that is incurred to refinance all or a portion of any Class Term Loans) to the repayment of Term Loans to be repaid from such Net Cash Proceeds on the date such Net Cash Proceeds are received. Any such prepayment of Term Loans of a Class shall be paid ratably to the holders of such Class and shall be applied to the remaining Term Loans of such Class in accordance with the requirements order specified in Section 2.13(b)(ii).
(e) Amounts to be applied pursuant to this Section 2.15 shall be applied first to reduce outstanding ABR Loans of the applicable Class. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans of such Class; provided, however, that the Borrower may elect (except in the case of a prepayment pursuant to Section 2.15(d)) that the remainder of such prepayments not applied to prepay ABR Loans be deposited in a collateral account pledged to the Administrative Agent to secure the Obligations (the “Collateral Account”) and applied thereafter to prepay the Eurodollar Loans on the last day of the next expiring Interest Period for Eurodollar Loans; provided that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurodollar Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurodollar Loan, and (B) at any time while a Default has occurred and is continuing, the Administrative Agent may, and upon written direction from the Required Lenders, shall apply any or all of such amounts to the payment of Eurodollar Loans.
(f) Notwithstanding any other provisions of Section 6.01(z2.15 to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (“Foreign Asset Sale”), in each case the Net Cash Proceeds of any Casualty Event received by a Foreign Subsidiary (“Foreign Recovery Event”), the Net Cash Proceeds of any incurrence of Indebtedness by a Foreign Subsidiary to the extent required to repay the Term Loans pursuant to Section 2.15(a) (“Foreign Indebtedness Event”) or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.15 but may be retained by the terms hereof applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or thereof the passing on to prepay or offer to prepay such Indebtedness), otherwise using for the benefit of the Borrower shallor the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly upon effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit after such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would taxes payable or reasonably estimated to be payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), 2.15 (x) Incremental Term Loans incurred to refinance all or a portion provided that no such prepayment of the Term Loans pursuant to Section 2.222.15 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) Replacement Term Loans incurred such Net Cash Proceeds or Excess Cash Flow are applied to refinance all or any portion the repayment of the Term Loans in accordance with the requirements Indebtedness of Section 9.02(ca Foreign Subsidiary), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (GNC Holdings, Inc.), Credit Agreement (GNC Acquisition Holdings Inc.)
Mandatory Prepayments. (ia) [ReservedIntentionally Omitted]
(b) In the event that on or before the 60th day following the entry by the Bankruptcy Court of the Interim Order, the Final Order has not been entered by the Bankruptcy Court, the Borrowers shall prepay all outstanding Loan Document Obligations on such day.
(iic) No later than In the fifth Business Day following the receipt event and on each occasion that any Net Cash Proceeds are received by or on behalf of Net Proceeds Holdings or any Subsidiary in respect of any a Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearEvent, the Borrower shall apply Borrowers shall, within five Business Days after such Net Cash Proceeds are so received, prepay the outstanding Loans in an aggregate principal amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Applicable Prepayment Percentage of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Cash Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any Prepayment Event that is an Asset Sale, if the Borrowing Agent shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrowing Agent, on or prior to the date that a prepayment would otherwise be required hereunder if such proceeds relating certificate were not delivered, to the effect that Holdings and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a sale portion thereof specified in such certificate), within the Reinvestment Period applicable to such Net Cash Proceeds, to acquire real property, equipment or other event with respect tangible or intangible assets to a Restricted Subsidiary be used in the business of Holdings and the Subsidiaries (which real property, equipment or other assets must be assets that is not a Wholly Owned Subsidiary, become Collateral to pay Indebtedness of the extent that such SubsidiaryNet Cash Proceeds are attributable to assets that were Collateral), thenand certifying that no Default has occurred and is continuing, the Borrower then no prepayment shall not be required pursuant to make a mandatory prepayment under this clause (ii) paragraph in respect of such Net Cash Proceeds (or the Subject portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent the Subject of any such Net Cash Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior by the end of such Reinvestment Period, at which time a prepayment shall be required in an aggregate principal amount equal to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Cash Proceeds by the Borrower or its applicable Restricted Subsidiarythat have not been so applied. For purposes hereof, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans “Reinvestment Period” means, in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower respect of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Net Cash Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if period beginning on the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or date of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, Net Cash Proceeds and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveending 180 days thereafter.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Mandatory Prepayments. (i) [Reserved]In the event and on each occasion of a Prepayment Event listed in clause (a) of the definition thereof, the Borrower shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective Obligor, prepay Term Loans in an aggregate amount equal to 33.33% of the amount of such Net Cash Proceeds.
(ii) No later than In the fifth event and on each occasion of a Prepayment Event listed in clause (b) of the definition thereof, the Borrower shall, within five Business Day following Days after the receipt of Net Cash Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andthereof are received by the respective Obligor, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, prepay Term Loans in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) amount of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectivelyCash Proceeds, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any event described in clause (b)(ii) of the definition of Prepayment Event, if the Obligor applies the Net Cash Proceeds from such proceeds relating to event (or a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness portion thereof) (i) within 90 days after receipt of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause Net Cash Proceeds and (ii) at a time when no Event of Default has occurred and is continuing, to acquire assets to be used or useful in the business of such Obligor, then no prepayment shall be required pursuant to this paragraph in respect of the Subject Net Cash Proceeds in respect of such event (or the portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent the Subject of any such Net Cash Proceeds are so applied within 18 months following receipt thereof (it being understood therefrom that if the Subject Proceeds have not been so applied prior to by the expiration end of the applicable such 90 day period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided thatapplicable, during any period during at which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (time a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales prepayment shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or an amount equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the such Net Cash Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)that have not been so applied.
(iii) In the event that and on each occasion of a Prepayment Event listed in clause (c) of the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)definition thereof, the Borrower shall, promptly upon (and in any event not later than within five Business Days thereafter) after the receipt Net Cash Proceeds in respect thereof are received by the respective Obligor, prepay Term Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds proceeds, provided that, if the respective Obligor applies the proceeds from such event (or a portion thereof) (i) within 180 days after receipt of such proceeds and (ii) at a time when no Event of Default has occurred and is continuing, to repair, restore or replace the property or asset which gave rise to the Prepayment Event, then no prepayment shall be required pursuant to this paragraph in respect of the proceeds in respect of such event (or the portion of such proceeds specified in such certificate, if applicable) except to the extent of any such proceeds therefrom that have not been so applied by the end of such 180 day period, as applicable, at which time a prepayment shall be required in an amount equal to such proceeds that have not been so applied.
(iv) In the event and on each occasion of a Prepayment Event listed in clause (d) of the definition thereof, the Borrower or its applicable Restricted Subsidiaryshall, apply within five Business Days after the payments referred to therein are made, prepay Term Loans in an aggregate amount equal to 75% of the amount of payments made in such Prepayment Event.
(v) In the event and on each occasion of a Prepayment Event listed in clause (e) of the definition thereof, the Borrower shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective Obligor, prepay Term Loans in an aggregate amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause Cash Proceeds.
(vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower Each prepayment of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to the foregoing provisions of this Section 2.11(b2.05(b) shall be paid to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, Lenders in each case, solely accordance with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovetheir respective Pro Rata Shares.
(vvii) At the Borrower’s option, any Term Lender may elect, by notice to The Borrower shall notify the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to writing of any mandatory prepayment of Term Loans required to be made by pursuant this Section 2.05(b) at least five (5) days prior to the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage date of such prepayment (prepayment. Each such declined amounts, notice shall specify the “Declined Proceeds”), in which case date of such Declined Proceeds may be retained by the Borrower pre-payment and will be added to the Available Amount as set forth in clause (a)(v) provide a reasonably detailed calculation of the definition thereof; provided that, for the avoidance amount of doubt, no such prepayment. The Administrative Agent will promptly notify each Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion contents of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion Borrower’s prepayment notice and of such Lender’s pro rata share of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6applicable prepayment.
Appears in 2 contracts
Sources: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Upon the fifth Business Day following the receipt of Net Proceeds in respect occurrence of any Prepayment Casualty Event or Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year(that is not otherwise permitted pursuant to Section 9.09), the Borrower shall apply make a mandatory prepayment of the Loans in an amount equal to one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments%) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Net Cash Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted with respect to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all such Casualty Event or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiarySale, as the case may be, for with such amount of Net Cash Proceeds being allocated to the prepayment of principal, the payment of accrued and unpaid interest on such principal amount of the Loans being prepaid and the Prepayment Premium such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds; provided that, so long as no Event of Default has occurred and is continuing or would result therefrom, if, within five (5) Business Days following (x) the repatriation to the Borrower occurrence of any such amount would be prohibited Asset Sale or delayed under (y) the receipt of Net Cash Proceeds from any Requirement Casualty Event, a Responsible Officer of Law the Borrower delivers to the Administrative Agent a notice to the effect that the Borrower or conflict with the fiduciary duties applicable Subsidiary intends to apply the Net Cash Proceeds from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the asset subject to such Casualty Event or Asset Sale, then such Net Cash Proceeds of such Foreign Subsidiary’s directors, Casualty Event or result in, or would reasonably Asset Sale may be expected to result in, a material risk of personal, civil or criminal liability applied for any officer, director, employee, manager, member of management or consultant such purpose in lieu of such Foreign Subsidiary (it being agreed mandatory prepayment to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually applied for such purpose, provided, further, that, solely in the event that Net Cash Proceeds have not been so applied within 365 one hundred and eighty (180) days following (x) the event giving rise to occurrence of any such Asset Sale or (y) the relevant Subject Proceedsreceipt of Net Cash Proceeds from any Casualty Event, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation make a mandatory prepayment of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, Loans in either case, an aggregate amount equal to such Subject Proceeds will be promptly applied one hundred percent (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts100%) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) unused balance of such Net Cash Proceeds received by the Borrower shall not be required to prepay or any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely of its Subsidiaries with respect to any joint venture that is a Restricted Subsidiarysuch Casualty Event or Asset Sale, for so long as the distribution case may be, with such amount of Net Cash Proceeds being allocated to the Borrower prepayment of principal, the payment of accrued and unpaid interest on such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation principal amount of the Closing Date or of receipt of such Subject Proceeds; it Loans being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, prepaid and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after Prepayment Premium such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant full Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable Price applicable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such mandatory prepayment is made paid with the such Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement (ArcherDX, Inc.), Credit Agreement (ArcherDX, Inc.)
Mandatory Prepayments. (i) [Reserved].
Within five (ii5) No later than Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower Borrowers shall apply cause to be prepaid an aggregate principal amount of Term Loans equal to 100(A) 50% (such percentage, percentage as it may be reduced as described below, the “Net Proceeds ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such Net Proceeds or Net Insurance/Condemnation Proceeds received financial statements (commencing with respect thereto in excess the first full fiscal year ending after the Closing Date), minus (B) the sum of such threshold (collectively, the “Subject Proceeds”1) to prepay the outstanding principal amount all voluntary prepayments of Term Loans then subject during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Parent Borrower’s option, following the last day of such fiscal year and on or prior to such required prepayment requirements date) and (2) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the “Subject Loans”Parent Borrower’s option, following the last day of such fiscal year and on or prior to such required prepayment date) to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in accordance the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are not funded with clause (vi) belowthe proceeds of Indebtedness or any Cure Amount; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expendituresx) the Subject Proceeds ECF Percentage shall be 25% if the First Lien Senior Secured Leverage Ratio (after giving effect to any prepayment of Loans after such year as contemplated above in the business clause (other than Cash or Cash EquivalentsB)) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) as of the Borrower last day of the fiscal year covered by such financial statements was less than 4.00:1.00 and greater than or equal to 3.75:1.00 and (y) the ECF Percentage shall be 0% if the First Lien Senior Secured Leverage Ratio (after giving effect to any prepayment of its Restricted Subsidiaries, then, Loans after such year as contemplated above in clause (B)) as of the Borrower shall not be required to make a mandatory prepayment under this clause last day of the fiscal year covered by such financial statements was less than 3.75:1.00.
(ii) in respect of (A) Subject to Section 2.05(b)(ii)(B), if following the Subject Proceeds to the extent Closing Date (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Parent Borrower or any Restricted Subsidiary Disposes of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration any property or assets (other than any Disposition of such 18 month period any property or assets permitted by Section 7.05(a), (it being understood that if the Subject Proceeds have not been so reinvested prior b), (c), (d) (to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating extent constituting a Disposition to a sale or other event with respect to Loan Party, by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, Loan Party or pursuant to pay Indebtedness clause (iv) of such Subsidiarythe proviso thereto), then(e), the Borrower shall not be required to make a mandatory prepayment under this clause (iif), (g), (i) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts except as set forth above in this clause the proviso thereto), (IIj), (k), (n), (o), (p), (q), (r), (s) and (u)); provided that, during or (y) any period during Casualty Event occurs, which in the scheduled expiration aggregate results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower’s existence Borrowers shall make a prepayment, in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”Section 2.05(b)(ii)(C), 100% of an aggregate principal amount of Term Loans equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans at such time divided by (y) the sum of the Net Proceeds Outstanding Amount of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, time and the amount of any other Indebtedness outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of the Subject Loans all such Net Cash Proceeds realized or received; provided that would have otherwise been no such prepayment shall be required pursuant to this Section 2.11(b)(ii2.05(b)(ii)(A) shall be reduced accordingly and (2I) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect respect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Cash Proceeds by that the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Parent Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary have, on or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal prior to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venturedate, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by given written notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added intent to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing) or (II) until the requirements aggregate amount of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the requirements time periods set forth therein and not previously applied to such a prepayment exceeds $100,000,000 for any single Disposition or series of Section 6related Dispositions.
Appears in 2 contracts
Sources: Credit Agreement (Restaurant Brands International Inc.), Credit Agreement (Restaurant Brands International Limited Partnership)
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (but not including any Excess Cash Flow attributable to any period ending prior to the Closing Date), the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, minus (B) at the option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.10(a) prior to such date (excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) in the prior Fiscal Year) (in the case of any such revolving loans prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any Fiscal Year, such percentage of Excess Cash Flow shall be reduced to 25% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to 1.00.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of $15,000,000 2,500,000 in the aggregate in any Fiscal Year, the Borrower Borrowers shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) thresholds to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) and Additional Term Loans in accordance with clause (vi) belowof this Section 2.10(b); provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if prior to the date any such prepayment is required to be made that it does not intend made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to (I) reinvest (including to make capital expenditures) the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any Combined Group, then so long as no Event of its Restricted Subsidiaries, thenDefault then exists, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds to the extent (x) the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 18 12 months following receipt thereof, or (y) the if Holdings, any Borrower or any of its Restricted Holdings’ Subsidiaries has committed to so reinvest the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds during such 18 12-month period and the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 180 days six months after the expiration of such 18 12-month period (it being understood period; provided, however, that if the Subject any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower Borrowers shall promptly prepay Term Loans in an amount equal to the Subject Loans with the amount of Subject Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)immediately preceding proviso); provided thatprovided, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”)further, 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is Borrowers are required to Prepay offer to repurchase any other Indebtedness secured on a pari passu basis (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations by Obligations) pursuant to the terms of the documentation governing such other Indebtedness with Net Proceeds (such Indebtedness (such other Indebtednessor Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, the “Other Applicable Indebtedness”), then the relevant Person Borrowers may apply the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Subject Term Loans and Additional Term Loans and to the Prepayment repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans, Additional Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discountODD) at such time); it being understood provided that (1) the portion of the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Subject Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.10(b)(ii) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidrepurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans to the extent required and Additional Term Loans in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)hereof.
(iii) In the event that the Borrower Holdings or any of its Restricted Subsidiaries receives shall receive Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower of Holdings or any of its Restricted Subsidiaries after the Closing Date (other than with respect to Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) constituting Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of the Term Loans or Additional Term Loans pursuant to Section 6.01(p), (B6,01(p) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all Term Loans or any portion of any Class of Additional Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower Borrowers shall, promptly upon substantially simultaneously with (and in any event not later than five the next succeeding Business Days thereafterDay) the receipt thereof of such Net Proceeds by the Borrower Holdings or its applicable Restricted such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans and Additional Term Loans in accordance with clause (vi) belowof this Section 2.10(b).
(iv) Notwithstanding anything in any provision under this Section 2.11(b2.10(b) to the contrary:
, (A) the Borrower shall not be required to prepay any amount amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.11(b)(ii2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent that the relevant any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by any a Foreign Subsidiary or the relevant Subsidiary, such Net Insurance/Condemnation Proceeds are received by any a Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower United States of any such amount amounts would be prohibited or delayed under any Requirement of Law or conflict with (the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected applicable Borrower agreeing to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such cause the applicable Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall promptly take all actions commercially reasonable actions reasonably required by the applicable Requirements of Law local law to permit such repatriation) (it being understood that if the ), and once such repatriation of the relevant Subject any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law andLaw, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds repatriation will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating immediately effected and such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject repatriated Net Proceeds, and the distributed Subject Net Insurance/Condemnation Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such distributionrepatriation) applied (net of additional Taxes (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the applicable Term Loans and Additional Term Loans pursuant to this Section 2.11(b2.10(b) to the extent required herein provided herein; and (without regard to this clause (iv)), and
(CB) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower Representative determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.11(b)(ii2.10(b)(i) or (ii) above would result in a material adverse Tax liability (consequences, taking into account any withholding Tax) foreign Tax credit or benefit actually realized in connection with such repatriation (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), as reasonably determined by the Borrower Representative, the amount that the Borrower Borrowers shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted AmountAmount until such time as it may repatriate to the United States such Restricted Amount without incurring such 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 reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) 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 or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied to the repayment of Indebtedness of the applicable Foreign Subsidiary; provided, further, that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject any Net Proceeds, directly Net Insurance/Condemnation Proceeds or indirectly, Excess Cash Flow from the relevant such Foreign Subsidiary would no longer have a material an adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject ProceedsTax consequence, an amount equal to the Subject Net Proceeds, Net Insurance/Condemnation Proceeds to the extent availableor Excess Cash Flow, and as applicable, not previously applied pursuant to this clause preceding clauses (Cx) and (y), shall be promptly applied to the repayment of the applicable Term Loans and Additional Term Loans pursuant to Section 2.11(b2.10(b) as otherwise required aboveabove (without regard to this clause (iv)).
(v) At the Borrower’s option, any Term Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrower Borrowers pursuant to this Section 2.11(b2.10(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower Borrowers and will shall be added (without duplication) to the calculation of the Available Amount as set forth in clause (a)(v) of accordance with the definition thereof; provided provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii2.10(b)(iii) above to the extent that such prepayment is made constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the Net Proceeds requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(wvi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), and/or (zB) Incremental Equivalent Debt incurred with respect to refinance each Class of Term Loans, all or a portion of the Term Loans in accordance with the requirements of accepted prepayments under Section 6.2.10(b)(i), (ii) or
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than On the fifth first Business Day following the receipt delivery of Net Proceeds in respect of any a Mandatory Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Notice from the Calculation Agent to the Borrower shall apply an amount equal (with a copy thereof to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to and the date any such prepayment is required to be made Lenders) stating that it does not intend to a Mandatory Prepayment Event has occurred (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall which need not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)continuing) (provided that, with respect subject to this clause (Ithe last sentence of Section 2.05(b), at if the Borrower’s election Calculation Agent fails to deliver such Mandatory Prepayment Notice by written notice to 5:30 p.m. on the Administrative Agent, expenditures and investments occurring prior to receipt of date the relevant Subject Proceeds (and not otherwise applied Mandatory Prepayment Event occurs, any Lender may deliver or cause to be delivered the Mandatory Prepayment Notice in respect of such Mandatory Prepayment Event to the Borrower (with a copy thereof to each other Lender and Agent) with the same effect as if such Mandatory Prepayment Notice was delivered by the Calculation Agent; provided, further, that any other prepayment required by this clause (ii)), but after failure to so deliver a copy of a Mandatory Prepayment Notice to any Lender or Agent shall not invalidate the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt effectiveness of such Subject ProceedsMandatory Prepayment Notice) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans Loans, together with all accrued interest thereon and shall pay any additional amounts required pursuant to Section 3.04 and all other Obligations (other than contingent obligations for which no claim has been made).
(b) For purposes of the delivery and receipt of any Mandatory Prepayment Notice (including under Section 10.02), (i) the Borrower consents to the delivery of such Mandatory Prepayment Notice by electronic communications and (ii) the Borrower’s “normal business hours” shall be 9:00 a.m. to 6:00 p.m., each Business Day. Notwithstanding anything to the contrary contained herein, in the event that a Mandatory Prepayment Event occurs following any Potential Adjustment Event, Issuer Merger Event or Spin-Off Event, then the Calculation Agent and the Other Applicable Indebtedness Lenders agree not to send a Mandatory Prepayment Notice until such time as Calculation Agent has made its (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant or, subject to the terms thereofand conditions of the proviso to this sentence, and the remaining amountRequired Lenders have made their) determination as to the appropriate adjustments, if any, of to be made to (i) the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down PeriodMinimum Price, (xii) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%)Maximum Share Number, (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) LTV Margin Call Level and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint ventureLTV Reset Level, in each case, solely in accordance with and subject to the provisions of Section 1.02(d); provided that, if the Calculation Agent fails to make its determination with respect to any joint venture such adjustments by 5:30 p.m. on the date the relevant Mandatory Prepayment Event occurs, the Required Lenders (provided that is a Restricted Subsidiarythe outstanding Loans held by, and unused Commitments of, the Calculation Agent and its Affiliates shall be excluded for so long as the distribution purposes of making such determination of Required Lenders) may make such adjustments, if any, in each case, in accordance with and subject to the Borrower provisions of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)1.02(d), and
(C) to with the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, same effect as if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced they were made by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveCalculation Agent.
(vc) At the Borrower’s optionSubject to Section 2.11(j), any Term Lender may elect, by notice prepayment described in this Section 2.05(a) shall be made to the Administrative Agent for the ratable accounts of the Lenders, and each prepayment described in subsection (d) shall be made for the ratable accounts of the Revolving Lenders. The Administrative Agent shall forward to each Lender its Ratable Share of each such payment.
(d) If for any reason the aggregate outstanding principal amount of all Revolving Loans at any time exceeds the aggregate Revolving Commitments at such time, Borrower shall immediately prepay the Revolving Loans in an aggregate principal amount equal to such excess after notice thereof from the Administrative Agent or prior any Lender. Each such payment shall be paid to the time and in Administrative Agent for the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) account of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans Revolving Lenders in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion their respective Applicable Percentages solely in respect of the Term Loans in accordance with the requirements of Section 6Revolving Loans.
Appears in 2 contracts
Sources: Margin Loan Agreement (Liberty Broadband Corp), Margin Loan Agreement (Liberty Broadband Corp)
Mandatory Prepayments. Within five (i5) [Reserved].
(ii) No later than the fifth Business Day following Days of the receipt of Net Cash Proceeds in respect from the occurrence of any Prepayment Casualty Event or Specified Asset Sale or Net Insurance/Condemnation Proceeds andSale, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Holdings and the Borrower shall apply an amount equal to one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments%) of the Borrower Net Cash Proceeds received by Holdings or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Casualty Event or Specified Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiarySale, as the case may be, for to (i) the prepayment of outstanding Loans and (ii) the payment of accrued and unpaid interest on the principal amount of the Loans being prepaid and the payment of the Early Prepayment Fee. Such Net Cash Proceeds shall be allocated to such prepayment and payments such that the full amount of principal, interest and prepayment fees payable hereunder shall be paid with such Net Cash Proceeds. Notwithstanding the foregoing, so long as no Default has occurred and is continuing or shall immediately result therefrom, if, within three (3) Business Days following the repatriation to the Borrower occurrence of any such amount would be prohibited Casualty Event or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result inSpecified Asset Sale, a material risk Responsible Officer of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise Borrower delivers to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, Administrative Agent a notice to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount effect that the Borrower shall be required or the applicable Subsidiary intends to mandatorily prepay pursuant apply the Net Cash Proceeds from such Casualty Event or Specified Asset Sale, to Section 2.11(b)(ii) aboverepair, as applicablerefurbish, shall be reduced by restore, replace or rebuild the Restricted Amount; provided that asset subject to such Casualty Event or Specified Asset Sale or to the extent that cost of purchase or constructing other assets useful in the repatriation (or other intercompany distribution) business of the relevant Subject ProceedsBorrower or its Subsidiaries, directly then such Net Cash Proceeds of such Casualty Event or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously Specified Asset Sale may be applied for such purpose in lieu of such mandatory prepayment otherwise required pursuant to this clause (C), shall be promptly applied b) to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage extent such Net Cash Proceeds of such prepayment (Casualty Event or Asset Sale are actually applied for such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofpurpose; provided that, for in the avoidance event that Net Cash Proceeds have not been so applied within one hundred and eighty (180) days following the occurrence of doubtsuch Casualty Event or Specified Asset Sale (or, no Lender if within such 180-day period the Borrower enters into a binding commitment to purchase or acquire such assets, within ninety (90) days from entering into such binding commitment), the Borrower shall make a mandatory prepayment of the Loans in an aggregate amount equal to one hundred percent (100%) of the unused balance of such Net Cash Proceeds received by Holdings or any of its Subsidiaries with respect to such Casualty Event or Specified Asset Sale, as the case may reject any prepayment made under Section 2.11(b)(iii) above be, together with payment of accrued and unpaid interest on the principal amount of the Loans being so prepaid and the applicable Early Prepayment Fee, with such amount of Net Cash Proceeds being allocated to the extent prepayment of principal, the payment of accrued and unpaid interest on such principal amount of the Loans being prepaid and the payment of the Early Prepayment Fee such that the full payable with respect to such mandatory prepayment is made paid with the such unused balance of Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement and Guaranty (Pear Therapeutics, Inc.), Credit Agreement and Guaranty (Pear Therapeutics, Inc.)
Mandatory Prepayments. There shall become due and payable and Borrower shall prepay the Loans in the following amounts and at the following times:
(i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to on the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the on which Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause Subsidiaries (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or other than any of its Restricted Project Finance Subsidiaries) receives any payment which constitutes Major Casualty Proceeds (other than Major Casualty Proceeds received by utility Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary property that is not a Wholly Owned Subsidiary, subject to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly first mortgage bonds otherwise permitted by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(iiAgreement). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Net Cash Proceeds of such payment; provided, the recipient (other than Administrative Agent) of any payment which constitutes such Major Casualty Proceeds may reinvest such payment within one hundred eighty (180) days, in replacement assets comparable to the extent availableassets giving rise to such payment; provided, further, the aggregate amount which may be reinvested by Borrower and not previously applied its Subsidiaries pursuant to this clause (C)the preceding proviso may not exceed $50,000,000.00 in any Fiscal Year; provided, shall be promptly applied further, if Borrower does not intend to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s optionreinvest such payment, any Term Lender may elect, by notice to the Administrative Agent at or prior to if the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as period set forth in clause this sentence expires without Borrower or such Subsidiary having reinvested such payment, Borrower shall prepay the Loans in an amount equal to the Net Cash Proceeds of such payment;
(a)(vii) promptly upon receipt by any Borrower or any of its Subsidiaries (other than any of its Project Finance Subsidiaries) of the definition thereof; provided thatproceeds from the issuance and sale of any Indebtedness or equity securities, for including but not limited to Indebtedness or equity securities undertaken to refinance funds used to consummate the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Related Transactions (other than proceeds of: (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or as a portion result of extensions and refinancings of the Term Loans pursuant to “Black Hills Corporation lease payment obligation on the Wygen I facility” described on Schedule 7.15(b) hereto which do not increase the principal amount thereof permitted under Section 6.01(p7.17(c)(A), (x) Incremental Term Loans incurred to refinance all or a portion of Indebtedness under the Term Loans pursuant to Section 2.22Existing Credit Agreement and any credit agreement entered into by and among, inter alia, the Initial Banks and Borrower which refinances the Existing Credit Agreement; (y) Replacement Term Loans incurred to refinance all Indebtedness issued by Black Hills Power, Inc. or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or CLF&P; and (z) Incremental Equivalent Debt incurred the Marketing Subsidiary Excluded Credit Facility), an amount equal to refinance all or a portion one hundred percent (100%) of the Term Net Cash Proceeds of such issuance and sale;
(iii) on the date on which Borrower or any of its Subsidiaries receives any payment which constitutes Extraordinary Receipts (other than, to the extent they constitute Extraordinary Receipts, proceeds of: (w) Indebtedness incurred as a result of extensions and refinancings of the “Black Hills Corporation lease payment obligation on the Wygen I facility” described on Schedule 7.15(b) hereto which do not increase the principal amount thereof permitted under Section 7.17(c)(A), (x) Indebtedness under the Existing Credit Agreement and any credit agreement entered into by and among, inter alia, the Initial Banks and Borrower which refinances the Existing Credit Agreement; (y) Indebtedness issued by Black Hills Power, Inc. or CLF&P; and (z) the Marketing Subsidiary Excluded Credit Facility), an amount equal to the amount of such payment; and
(iv) promptly upon receipt by any Borrower or any of its Subsidiaries of the proceeds of any Asset Disposition, an amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Asset Disposition; provided, no prepayment shall be required pursuant to this Section 2.8(b)(iv) unless and until the aggregate Net Cash Proceeds received from Asset Dispositions exceeds $20,000,000 (in which case all Net Cash Proceeds in excess of such amount shall be used to make prepayments pursuant to this Section 2.8(b)(iv)); provided, further, the recipient of such Net Cash Proceeds may reinvest such Net Cash Proceeds within one hundred eighty (180) days, in replacement assets of a kind then used or usable in the business of Borrower. If Borrower does not intend to so reinvest such Net Cash Proceeds, or if the period set forth in the immediately preceding sentence expires without Borrower having reinvested such Net Cash Proceeds, Borrower shall prepay the Loans in accordance with the requirements of Section 6an amount equal to such Net Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/)
Mandatory Prepayments. (ia) [Reserved].
If any Indebtedness (iiexcluding any Indebtedness incurred in accordance with Section 7.2) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearshall be incurred by Holdings, the Borrower shall apply or any Restricted Subsidiary, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied no later than one Business Day after the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto toward the prepayment of the Term Loans as set forth in excess of such threshold Section 2.12(d).
(collectivelyb) If on any date Holdings, the “Subject Proceeds”) Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to respect thereof, such Net Cash Proceeds shall be applied not later than five Business Days after such date toward the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)Section 2.12(d); provided that, during notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (y) on the date (the “Trigger Date”) that is six months after any period during which such Reinvestment Prepayment Date, the scheduled expiration Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date; provided that unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sales or Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $25,000,000 in any fiscal year of the Borrower’s existence in accordance , no such prepayment shall be required pursuant to this Section 2.12(b).
(c) If, for any fiscal year of the Borrower commencing with its organization documents would the fiscal year ending December 31, 2017, there shall be within 12 months Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (a “Scheduled Wind-Down Period”i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year (other than to the extent made with the proceeds of the incurrence of Indebtedness) and solely to the extent accompanied by permanent optional reductions of the Revolving Commitments and (B) all optional prepayments of Term Loans during such fiscal year (including optional prepayments pursuant to Section 2.11(b)), 100% in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the Net Proceeds prepayment of all ordinary course and non-ordinary course asset sales Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the financial statements 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.
(d) Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to repay the prepayment of the Term Loans or in accordance with Section 2.18(b) until paid in full. In connection with any Asset Financing Facility secured directly or indirectly mandatory prepayments by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required the Term Loans pursuant to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing Section 2.12, such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable 2.12(e), then, with respect to such Foreign Subsidiary, a “Restricted Amount”)mandatory prepayment, the amount that the Borrower of such mandatory prepayment shall be required applied first to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided Term Loans that are ABR Loans to the full extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise thereof before application to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At that are Eurocurrency Loans in a manner that minimizes the Borrower’s option, amount of any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans payments required to be made by the Borrower pursuant to Section 2.11(b), 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Each Lender may elect (in its sole discretion) to decline all (but not a portionless than all) of its Applicable Percentage of such prepayment pro rata share (such declined amountsamount, the “Declined Proceeds”)) of any mandatory prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., in which case on the date that is three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a notice of election declining receipt of its pro rata share of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s pro rata share of the total amount of such mandatory prepayment of Term Loans. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any Declined Proceeds may by any Lender shall be retained by the Borrower and will be added to its Restricted Subsidiaries and/or applied by the Available Amount as set forth Borrower or any of its Restricted Subsidiaries in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made manner not inconsistent with the Net Proceeds terms of this Agreement.
(wf) Refinancing On each occasion that Permitted Other Indebtedness (including Replacement Notes) is issued or incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p7.2(aa), (x) Incremental Term Loans incurred to refinance all or a portion the Borrower shall within three Business Days of receipt of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion Net Cash Proceeds of the such Permitted Other Indebtedness prepay Term Loans in accordance with an aggregate principal amount equal to 100% of the requirements Net Cash Proceeds from such issuance or incurrence of Section 9.02(cPermitted Other Indebtedness.
(g) Beginning on the Closing Date, the Borrower shall apply 100% of all cash proceeds net of all fees, commissions, costs and other expenses, from any issuance or incurrence of Refinancing Term Loans and Replacement Revolving Facility Commitments (other than solely by means of extending or renewing then existing Refinancing Term Loans and Replacement Revolving Facility Commitments without resulting in any net proceeds), and/or no later than three (z3) Incremental Equivalent Debt incurred to refinance all or a portion of Business Days after the date on which such Refinancing Term Loans and/or Replacement Revolving Facility Commitments are incurred, to prepay Term Loans and/or Revolving Commitments in accordance with Section 2.29.
(h) In the requirements event and on such occasion that the total outstanding Revolving Extensions of Section 6Credit exceed the total Revolving Commitments, the Borrower shall prepay Revolving Loans and/or Swingline Loans (or, if no such Loans are outstanding, deposit in a cash collateral account opened by the Administrative Agent an amount equal to the necessary aggregate then undrawn and unexpired amount of such Letters of Credit) made to the Borrower, in an aggregate amount equal to the amount by which the Revolving Extensions of Credit exceed the total Revolving Commitments. Each prepayment shall be applied to the Revolving Loans included in the repaid Loans such that each Revolving Lender receives its ratable share of such prepayment (based upon the respective Aggregate Exposures of the Revolving Lenders at the time of such prepayment).
Appears in 2 contracts
Sources: Credit Agreement (Engility Holdings, Inc.), Credit Agreement (Engility Holdings, Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Subject to the fifth Business Day following proviso below, and except to the receipt of extent such Net Cash Proceeds in respect have been used to prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearCasualty Event, the Borrower shall apply make a mandatory prepayment of the Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”%) of such the Net Proceeds or Net Insurance/Condemnation Cash Proceeds received with respect thereto in excess by the Borrower or any other Obligor as a result of such threshold Casualty Event up to the principal amount outstanding of the Term Loan, and (collectively, the “Subject Proceeds”y) to prepay the outstanding any accrued but unpaid interest on such principal amount of the Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowLoan being prepaid; provided that (A) so long as no Scheduled Wind-Down Period Default or Event of Default has occurred and is then in effect and continuing at the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of time the Borrower or any Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of its Restricted Subsidiariesany such Casualty Event, then, a Responsible Officer of the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds may deliver to the extent Administrative Agent a notice (xeach, a “Casualty Event Reinvestment Notice”) to the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) effect that the Borrower or any applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of purchase or construction of other assets useful in the business of Parent or its Restricted Subsidiaries has committed to so reinvest the Subject Subsidiaries, then such Net Cash Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration Casualty Event may be applied for such purpose in lieu of the applicable periodsuch mandatory prepayment, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided further that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Net Cash Proceeds have not been so applied prior to within one hundred eighty (180) days following the expiration occurrence of the applicable periodsuch Casualty Event, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (make a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the mandatory prepayment of the Subject Loans and Term Loan in an aggregate amount equal to the Prepayment sum of (A) one hundred percent (100%) of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date unused balance of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Cash Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any other Obligor as a result of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except such Casualty Event up to the extent principal amount outstanding of the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p)Loan, and (B) Incremental any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loans incurred to refinance all or a portion of any Class of Loan and the Second Amendment Term Loans pursuant to Section 2.22, (CLoan) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay on such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryLoan being prepaid, as the case may beprovided, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directorsfurther, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (property subject to the Casualty Event is Collateral, then any such acquired, replaced, repaired, purchased or other intercompany distribution) constructed property shall be Collateral in which the Administrative Agent, for the benefit of the relevant Subject ProceedsLenders, directly or indirectlyhas been granted a security interest under the Security Documents.
(ii) Upon the disposition and sale of the Tucson Real Estate in accordance with Section 8.23, from the relevant Foreign Subsidiary would no longer have Borrower shall make a material adverse tax consequence within mandatory prepayment of the 365 day period following the event giving rise to the relevant Subject Proceeds, Term Loan in an aggregate amount equal to the Subject lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Net Cash Proceeds received by the Borrower in connection with such sale, to be applied pursuant to Section 3.03(d) below.
(iii) Upon the extent availablereceipt of upfront proceeds pursuant to Section 8.18(b), Parent shall make a mandatory prepayment of the Term Loan in an aggregate amount not to exceed the lesser of (i) the entire outstanding Obligations as of such date and not previously (ii) $2,000,000, to be applied pursuant to Section 3.03(d) below; provided that if a sale of the North Carolina Business occurs, then no mandatory prepayment shall be required pursuant to this clause (Cb)(iii).
(iv) Upon the sale of the North Carolina Business in accordance with Section 8.27, the Borrower shall be promptly applied make a mandatory prepayment of the Term Loan in an aggregate amount equal to the repayment lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the applicable Term Loans Net Cash Proceeds received by any Obligor in connection with such sale, to be applied first, to payment of the “Obligations” (as defined in the Parent Credit Agreement) and second, pursuant to Section 2.11(b3.03(d) as otherwise required above.
(v) At below. Notwithstanding the Borrower’s optionforgoing, any Term Lender may elect, by notice to the Administrative Agent at or prior to extent the time and “Obligations” (as defined in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portionParent Credit Agreement) of its Applicable Percentage of such prepayment (such declined amountshave been satisfied in full, the “Declined Proceeds”)Obligors may retain up to $5,450,000 of Net Cash Proceeds received on the closing date of the sale of the North Carolina Business, provided that such funds are (A) held in which case such Declined Proceeds may be retained by the Borrower a Controlled Account, (B) used to pay employee retention bonuses in an amount not to exceed $450,000, and will be added to the Available Amount (C) except as set forth in clause (a)(vB), used solely for working capital purposes.
(v) Upon the receipt by any Obligor of any NC Earnout or any NC Escrow Release, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above Net Cash Proceeds received by such Obligor to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans be applied pursuant to Section 6.01(p), (x3.03(d) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6below.
Appears in 2 contracts
Sources: Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (i) [Reserved].
Within five (ii5) No later than the fifth Business Day following Days of the receipt of Net Cash Proceeds in respect from the occurrence of any Prepayment one or more Casualty Events or Specified Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesSales, in each either case, in excess of $15,000,000 1,000,000 in any Fiscal Yearthe aggregate per annum, the Borrower shall apply cause an amount equal to one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”%) of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess to be applied to (i) the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term the Loans, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable), with such amount of Net Cash Proceeds being allocated to such prepayment and payments such that the full amount of the principal amount of the Loans then subject to prepayment requirements being prepaid, together with any accrued and unpaid interest thereon, the Early Prepayment Fee (if applicable), the “Subject Loans”Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be paid in accordance full with clause (vi) below; provided that (A) such Net Cash Proceeds. Notwithstanding the foregoing, so long as no Scheduled Wind-Down Period Event of Default has occurred and is then in effect and continuing or shall immediately result therefrom, if, within three (3) Business Days following the occurrence of any such Casualty Event or Specified Asset Sale, a Responsible Officer of the Borrower does not notify the Administrative Agent in writing prior delivers to the date any Agent a notice to the effect that the Borrower intends to reinvest the Net Cash Proceeds from such prepayment is required Casualty Event or Specified Asset Sale, to be made that it does not intend repair, refurbish, restore, replace or rebuild the asset subject to (I) reinvest (including such Casualty Event or Specified Asset Sale or to make capital expenditures) the Subject Proceeds cost of purchasing or constructing other assets useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any its Subsidiaries or in connection with a Permitted Acquisition or other similar Investment permitted hereunder, then such Net Cash Proceeds of its Restricted Subsidiaries, then, the Borrower shall not such Casualty Event or Specified Asset Sale may be required to make a applied for such purpose in lieu of such mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect otherwise required pursuant to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceedsb) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent such Net Cash Proceeds of such Casualty Event or Specified Asset Sale are actually applied for such purpose; provided that, in the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject event such Net Cash Proceeds have not been so applied prior to within three hundred sixty (360) days following the expiration occurrence of the applicable periodsuch Casualty Event or Specified Asset Sale, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause cause one hundred percent (II)); provided that, during any period during which the scheduled expiration 100%) of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% unused balance of the such Net Cash Proceeds of all ordinary course and non-ordinary course asset sales shall to be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiaryi) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans Loans, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of the Early Prepayment Fee (if applicable), the Exit Fee and the Other Applicable Indebtedness Buyout Amount (or accreted if applicable), with such amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it of Net Cash Proceeds being understood that (1) the portion of the Subject Proceeds allocated to such prepayment and payments such that the Other Applicable Indebtedness shall not exceed the full amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the principal amount of the prepayment of Loans being prepaid, together with any accrued and unpaid interest thereon, the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(iiEarly Prepayment (if applicable), the Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be reduced accordingly and (2) to the extent the holders paid in full with such unused balance of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Cash Proceeds.
(iiiii) In Within three (3) Business Days of the event that the Borrower or any receipt of its Restricted Subsidiaries receives Net Cash Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Permitted Convertible Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply shall cause an amount equal to 100% of such Net Cash Proceeds to prepay be applied to (i) the prepayment of the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent necessary so that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or outstanding principal amount, after giving effect to such prepayment, does not exceed $50,000,000, (ii) the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation payment of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent Early Prepayment Fee (if applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the Exit Fee and the Buyout Amount (if applicable), with such amount of Net Cash Proceeds being allocated to such prepayment and payments such that the Borrower full amount of the principal amount of the Loans being prepaid, together with any accrued and unpaid interest thereon, the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject paid in full with such Net Cash Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Oyster Point Pharma, Inc.), Credit Agreement (Oyster Point Pharma, Inc.)
Mandatory Prepayments. Upon the occurrence of any Casualty Event or Asset Sale (i) [Reserved].
(ii) No later than that is not otherwise permitted pursuant to Section 9.09), to the fifth Business Day following extent that the receipt aggregate amount of Net Cash Proceeds received by Borrower and its Subsidiaries (and not paid to the Administrative Agent as a prepayment of the Loans) in respect of any Prepayment all such Casualty Events or Asset Sale or Net Insurance/Condemnation Proceeds andSales, during any Scheduled Wind-Down Periodwhen taken together, Net Proceeds of all ordinary course asset sales, exceeds $1,000,000 in each case, in excess of $15,000,000 in any Fiscal Yearsuch fiscal year, the Borrower shall apply make a mandatory prepayment of the Loans in an amount equal to one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments%) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Net Cash Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted with respect to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all such Casualty Event or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiarySale, as the case may be, for with such amount of Net Cash Proceeds being allocated to the prepayment of principal, the payment of accrued and unpaid interest on such principal amount of the Loans being prepaid and the Prepayment Premium such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds; provided that, so long as no Default has occurred and is continuing or shall result therefrom, if, within five (5) Business Days following the repatriation to the Borrower occurrence of any such amount would be prohibited Casualty Event or delayed under any Requirement Asset Sale, a Responsible Officer of Law the Borrower delivers to the Administrative Agent a notice to the effect that the Borrower or conflict with the fiduciary duties applicable Subsidiary intends to apply the Net Cash Proceeds from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the asset subject to such Casualty Event or Asset Sale, then such Net Cash Proceeds of such Foreign Subsidiary’s directors, Casualty Event or result in, or would reasonably Asset Sale may be expected to result in, a material risk of personal, civil or criminal liability applied for any officer, director, employee, manager, member of management or consultant such purpose in lieu of such Foreign Subsidiary (it being agreed mandatory prepayment to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually applied for such purpose, provided, further, that, solely in the event that Net Cash Proceeds have not been so applied within 365 one hundred and eighty (180) days following the event giving rise to the relevant Subject Proceedsoccurrence of such Casualty Event or Asset Sale, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation make a mandatory prepayment of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, Loans in either case, an aggregate amount equal to such Subject Proceeds will be promptly applied one hundred percent (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts100%) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) unused balance of such Net Cash Proceeds received by the Borrower shall not be required to prepay or any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely of its Subsidiaries with respect to any joint venture that is a Restricted Subsidiarysuch Casualty Event or Asset Sale, for so long as the distribution case may be, with such amount of Net Cash Proceeds being allocated to the Borrower prepayment of principal, the payment of accrued and unpaid interest on such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation principal amount of the Closing Date or of receipt of such Subject Proceeds; it Loans being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, prepaid and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after Prepayment Premium such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant full Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable Price applicable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such mandatory prepayment is made paid with the such Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement (Zymergen Inc.), Credit Agreement (Zymergen Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No Not later than the fifth Business Day following the receipt of Net Cash Proceeds in respect of any Prepayment Asset Sale or any Recovery Event (to the extent that such Net Insurance/Condemnation Cash Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, exceed $1,000,000 in each case, in excess of $15,000,000 in any Fiscal Yearthe aggregate), the Borrower Borrowers shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Cash Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowSection 2.13(e); provided that (A) that: so long as no Scheduled Wind-Down Period is Event of Default shall then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any exist or would arise therefrom, such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower proceeds shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds be so applied on such date to the extent (x) the Subject that such Net Cash Proceeds are expected to be used, or committed to be used, to acquire assets useful (in the good faith judgment of the U.S. Borrower) in the Borrowers’ (or their Restricted Subsidiaries’) business within 12 months following the date of such Asset Sale or Recovery Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if the Borrowers or any of their Restricted Subsidiaries have entered into a binding contractual commitment for reinvestment within such 12-month period, not so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration date of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (IAsset Sale or Recovery Event), at such unused portion shall be applied on the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt last day of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make period as a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above provided in this clause (II)Section 2.13(a); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary further that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, if at the time that any such prepayment would be required hereunderrequired, the Borrower Borrowers or any of its Restricted Subsidiaries Subsidiary is required to Prepay any other repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations by pursuant to the terms of the documentation governing such other Indebtedness with the net proceeds of such Asset Sale or Recovery Event (such other IndebtednessIndebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the relevant Person applicable Borrower or applicable Restricted Subsidiary may apply the Subject such Net Cash Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) time so long as the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase, redemption or prepayment of Other Applicable Indebtedness, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.13(a) shall be reduced accordingly and accordingly.
(2b) to No later than the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten fifth Business Days Day after the date on which financial statements with respect to a fiscal year of such rejection) be applied Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2016, the Borrowers shall prepay the Subject outstanding Loans to the extent required in accordance with Section 2.13(e) in an aggregate principal amount equal to the terms excess (if any) of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) 50% of Excess Cash Flow for the Net Proceeds Percentage fiscal year then ended (provided that such percentage shall be 50.0reduced to 25% if the Total Debt to Equity Net Leverage Ratio for as of the Test Period most recently ended prior to the date end of such required prepayment is fiscal year was less than or equal to 0.75 2.00 to 1.00 and but greater than 0.50 1.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect 1.00, and to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.00% if the Total Debt to Equity Net Leverage Ratio for as of the Test Period most recently ended prior to the date end of such required prepayment is fiscal year was less than or equal to 0.50 1.50 to 1.00 and greater 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than 0.25 to 1.00 (the extent any such Voluntary Prepayment is funded with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate proceeds of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)new long-term Indebtedness.
(iiic) In the event that the any Borrower or any of its Restricted Subsidiaries receives Subsidiary shall receive Net Cash Proceeds from the issuance issuance, offering, placement or incurrence of Indebtedness by the for money borrowed of any Borrower or any of its Restricted Subsidiaries after the Closing Date Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness that is for money borrowed permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness6.01), the Borrower Borrowers shall, promptly upon substantially simultaneously with (and in any event not later than five the fifth Business Days thereafterDay next following) the receipt thereof of such Net Cash Proceeds by the Borrower Borrowers or its applicable such Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(e).
(d) Upon the earliest to occur of (i) the termination of the Acquisition Agreement in accordance with its terms, (ii) Capitol ceasing all operations except for the purposes of winding up, redeeming 100% of the shares sold in Capitol’s initial public offering for cash and dissolving and liquidating and (iii) August 1, 2015, the Borrowers shall, not later than the second Business Day following the date of such occurrence, apply an amount equal to $30,000,000 to prepay outstanding Loans in accordance with Section 2.13(e) (the “Outside Date Repayment”).
(e) So long as any Loans are outstanding, mandatory prepayments of outstanding Loans under this Agreement shall be applied pro rata to each Class of Loans (except, in the case of amounts required to mandatorily prepay the Loans pursuant to Sections 2.13(b), such mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in good faith by the U.S. Borrower) and within each Class to any installments thereof (1) in direct order of maturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, and (2) thereafter, ratably to the remaining installments.
(f) Each 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 each Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business 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. The Administrative Agent shall promptly advise the Lenders of any notice given (and the contents thereof) pursuant to this Section 2.13. Each such Lender may reject all of its pro rata share of the prepayment (excluding the Outside Date Prepayment) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrowers no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such Lender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the relevant Class prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or Classes such Rejection Notice fails to specify the principal amount of Term Loans in accordance with clause (vi) belowthe prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Any Declined Proceeds may be retained by the Borrowers. 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 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(ivg) Notwithstanding anything in this Section 2.11(b) to In connection with any mandatory prepayments by the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation Borrowers of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) 2.13, such prepayments shall be applied on a pro rata basis to the extent required herein (without regard then outstanding Loans being prepaid irrespective of whether such outstanding Loans are Alternate Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is waive a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation given mandatory prepayment of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to Section 2.13(f), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Loans that are Alternate Base Rate Loans to the full extent thereof before application to Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 2.16. Notwithstanding any other provisions of this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary2.13, if the Borrower determines Borrowers determine in good faith that the repatriation (or other intercompany distribution) to the Borrowerby any Foreign Subsidiary, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(iiSections 2.13(a) or (b) above would result in a material and adverse Tax liability tax consequences (including from withholding tax), taking into account any withholding Tax) foreign tax credit or benefit actually realized in connection with such repatriation (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), as reasonably determined by the Borrowers, the amount that the U.S. Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(iiSections 2.13(a) or (b) above, as applicable, shall be reduced by the Restricted AmountAmount until such time as such Foreign Subsidiaries may repatriate to the U.S. Borrower the Restricted Amount without incurring such material and adverse tax liability (the Borrowers hereby agreeing to use commercially reasonable efforts to, and to cause each of its Foreign Subsidiaries to, promptly take all available actions reasonably required to mitigate such tax liability); provided that to the extent that the repatriation (of any Net Cash Proceeds or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material an adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceedsconsequence, an amount equal to the Subject Net Cash Proceeds to the extent availableor Excess Cash Flow, and as applicable, not previously applied pursuant to this the immediately preceding clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(bSections 2.13(a) or (b) as otherwise required aboveabove (without regard to this paragraph).
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 2 contracts
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of Intermediate Dutch Holdings are required to be delivered pursuant to Section 5.01(b), commencing with the first full Fiscal Year ending after the Closing Date, the Borrowers shall prepay (or cause to be prepaid) the outstanding principal amount of Initial Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) of this Section 2.11(b) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (x) the Required Excess Cash Flow Percentage of Excess Cash Flow of Intermediate Dutch Holdings and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (y) at the option of the Borrower Representative (to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)):
(A) (1) the aggregate principal amount of any optional prepayment, repurchase, redemption or other retirement of any First Lien Debt (and in the case of any such First Lien Debt constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitments) prior to the date that the applicable prepayment is due and (2) the aggregate principal amount of any optional prepayment, repurchase, redemption or other retirement of any Junior Lien Debt (and in the case of any such Junior Lien Debt constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitments) prior to the date that the applicable prepayment is due, in each case of the foregoing clauses (1) and (2), excluding any such optional prepayment, repurchase, redemption or other retirement made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year of the Intermediate Dutch Holdings;
(B) the amount of any reduction in the outstanding principal amount of any Term Loan, any other First Lien Debt and/or any Junior Lien Debt resulting from any assignment to (and/or purchase by) Intermediate Dutch Holdings or any Restricted Subsidiary of any such Indebtedness (and in the case of any such Indebtedness constituting revolving indebtedness, to the extent accompanied by a permanent reduction in the applicable revolving commitment) prior to the date that the applicable prepayment is due, in each case, to the extent of the amount paid in Cash by Intermediate Dutch Holdings or the applicable Restricted Subsidiary in connection with the relevant assignment and/or purchase, excluding any such assignment and/or purchase made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year;
(C) the amount of any Capital Expenditure, Investment, Restricted Payment and/or Restricted Debt Payment (1) made during such Fiscal Year or after such Fiscal Year but prior to the date that the applicable prepayment is due or (2) contractually committed during such Fiscal Year (or after such Fiscal Year but prior to the date that the applicable prepayment is due) to be made during the immediately succeeding Fiscal Year, in each case, excluding any such amount that (x) is actually applied during such Fiscal Year and (y) reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in any prior Fiscal Year; provided, that the deduction described in clause (1) above shall not apply to the extent the relevant amount was financed with the proceeds of long-term funded Indebtedness (other than revolving Indebtedness); provided, that:
(I) no prepayment under this Section 2.11(b)(i) shall be required unless the amount thereof exceeds the greater of $25,000,000 and 5% of Consolidated Adjusted EBITDA (the “De Minimis ECF Threshold”) as of the last day of the most recently ended Test Period; it being understood that (x) only the amount in excess of the De Minimis ECF Threshold shall be required to be applied to make a prepayment in accordance with this Section 2.11(b)(i) and (y) if the amount of any required prepayment pursuant to this Section 2.11(b)(i) (without giving effect to the De Minimis ECF Threshold) for any Excess Cash Flow Period is less than the De Minimis ECF Threshold for such Excess Cash Flow Period, an amount equal to (1) the De Minimis ECF Threshold for such Excess Cash Flow Period minus (2) the amount of the required prepayment (without giving effect to the De Minimis ECF Threshold) pursuant to this Section 2.11(b)(i) for such Excess Cash Flow Period shall be applied to increase the De Minimis ECF Threshold in succeeding Excess Cash Flow Periods;
(II) if at the time that any such prepayment would be required, Intermediate Dutch Holdings (or any Restricted Subsidiary of Intermediate Dutch Holdings) is also required to prepay any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower Representative may apply (or cause to be applied) such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, that (X) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly and (Y) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness prepaid, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans and any relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in the first proviso of this clause (II)) in accordance with the terms hereof; it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by this clause (Y), the Borrower Representative shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness; and
(III) to the extent the ECF Prepayment Amount for any Excess Cash Flow Period, after giving effect to all deductions and credits (including any deduction of the types described in clauses (A) through (C) above) applicable thereto, is a negative amount, such negative amount may be carried forward to reduce the required ECF Prepayment Amount with respect to any future Excess Cash Flow Period selected by the Borrower Representative in its sole discretion.
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of the greater of $15,000,000 25,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower Borrowers shall apply (or cause to be applied) an amount equal to 100% (such percentage, as it may be reduced as described below, the “Required Net Proceeds Percentage”) Percentage of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term of, and accrued interest on, the Subject Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that provided, that
(A) so long as no Scheduled Wind-Down Period it is then understood that (1) only the amount in excess of the De Minimis Proceeds Threshold shall be required to be applied to make a prepayment in accordance with this Section 2.11(b)(ii) and (2) if the amount of any prepayment that would have been required pursuant to this Section 2.11(b)(ii) (without giving effect and to the Borrower does not notify De Minimis Proceeds Threshold) for any Fiscal Year is less than the Administrative Agent De Minimis Proceeds Threshold for such Fiscal Year, an amount equal to (x) the De Minimis Proceeds Threshold for such Fiscal Year minus (y) the amount of the prepayment that would have been required but for the De Minimis Proceeds Threshold pursuant to this Section 2.11(b)(ii) for such Fiscal Year shall be applied to increase the De Minimis Proceeds Threshold in writing succeeding Fiscal Years;
(B) if prior to the date on which any such prepayment is required to be made that it does not intend made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to (I) reinvest (including to make capital expenditures) the applicable Subject Proceeds in the business of Intermediate Dutch Holdings and/or any subsidiary (other than an investment in Cash or Cash Equivalents) (including), without limitation, investments in CRE Finance Assets and Real Estate Investments) of then the Borrower or any of its Restricted Subsidiaries, then, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the applicable Subject Proceeds to the extent (x1) the applicable Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y2) the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries subsidiary has committed to so reinvest the applicable Subject Proceeds during such 18 18-month period and the applicable Subject Proceeds are so reinvested within 180 days 6 month after the expiration of such 18 18-month period (period; it being understood that (x) if the applicable Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower Borrowers shall promptly prepay the Subject Loans with the amount of applicable Subject Proceeds not so reinvested as set forth above in this clause (I)without regard to the immediately preceding proviso) and (provided that, with respect y) any investment by Intermediate Dutch Holdings or its applicable subsidiaries (up to this clause an amount equal to the applicable Subject Proceeds) after the earlier to occur of (I), at i) the Borrower’s election by written date on which the definitive agreement for the applicable Disposition was executed and (ii) the date on which the Borrower Representative delivers notice to the Administrative Agent, expenditures and investments occurring Agent of a pending Disposition (but prior to receipt of the relevant Subject date on which Intermediate Dutch Holdings and/or any subsidiary receives the Net Proceeds (and not otherwise applied in respect of any other prepayment required by Prepayment Asset Sale or Net Insurance Condemnation Proceeds) may, at the election of the Borrower Representative, be deemed to constitute a reinvestment of the applicable Subject Proceeds in compliance with, and in satisfaction of the obligations under, this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)B); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months and
(a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (BC) if, at the time that any such prepayment would be required hereunder, the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries is required to Prepay repay or repurchase any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Other Applicable Indebtedness (or offer to repurchase such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of hereof and any relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this Section 2.11(b)(iiclause (C). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% ; it being understood and agreed that if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower Representative shall not be required to subsequently offer the amount of the relevant declined prepayment is less than to any Term Lender or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate any holder of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Other Applicable Indebtedness.
(iii) In the event that the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement NotesDebt) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred in reliance on clause (b) of the definition of “Incremental Cap” to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap”, to refinance all or a portion of any Class of Term the Loans in accordance with the requirements of Section 6.01(z)the definition thereof, in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower Representative shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower Intermediate Dutch Holdings or its applicable Restricted Subsidiary, apply (or cause to be applied) an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower Representative shall not be required to prepay (or cause to be prepaid) any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Non-US Subsidiary or any US Subsidiary of any Non-US Subsidiary (any such Person, a “Specified Subsidiary”), the relevant Prepayment Asset Sale is consummated by any Foreign Specified Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Specified Subsidiary, as the case may be, for so long as the repatriation and/or other transfer to the Borrower Representative of any such amount would be prohibited be, in the good faith determination of the Borrower Representative, prohibited, restricted or delayed under any Requirement of Law (including for the avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of Cash intra-group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of Intermediate Dutch Holdings and/or any of its Restricted Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Foreign Specified Subsidiary’s directorsdirectors (or equivalent Persons), or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Specified Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation and/or other transfer of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.releva
Appears in 2 contracts
Sources: Credit Agreement (NIQ Global Intelligence LTD), Credit Agreement (NIQ Global Intelligence LTD)
Mandatory Prepayments. (a) The Borrower shall prepay the Term Loans with funds available in the Presale Proceeds Account in accordance with 52 the terms of Section 8.9.
(b) The Borrower shall prepay the Loans on each Principal Payment Date in accordance with the terms of Section 8.10(b).
(c) The Borrower shall prepay the Loans immediately (except as provided in Section 2.9(k)) after the receipt of Net Cash Proceeds as follows:
(i) [Reserved].by an amount equal to 50% of the Net Cash Proceeds of any issuance on and after the Closing Date of Capital Stock of the Borrower or any Permitted Parent Company; PROVIDED, HOWEVER, that if a Responsible Officer of the Borrower delivers to the Administrative Agent and the Collateral Trustee a certificate on or before the date such Net Cash Proceeds are received and such certificate sets forth the portion of such Net Cash Proceeds the Borrower intends to spend on Permitted Upgrades within the next six months, together with a description of such Permitted Upgrades, then, so long as no Default, Event of Default or Designated Event shall have occurred and be continuing, the Borrower shall be permitted to retain such portion (the "SPECIFIED PORTION") in the Sales and Issuances Proceeds Account to pay for Permitted Upgrades in accordance with Section 8.21, with 50% of the remainder of such Net Cash Proceeds being immediately used to prepay the Loans; PROVIDED, FURTHER, that if the Specified Portion is not applied within six months (or such longer period not in excess of one year as the Administrative Agent may approve in writing), 50% of such unapplied amount shall also be immediately used to prepay the Loans;
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply by an amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Cash Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess any incurrence of such threshold (collectively, Indebtedness on and after the “Subject Proceeds”) to prepay Closing Date by the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) Borrower in accordance with clause (vig) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date of Section 6.1 or by any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) Subsidiary of the Borrower or any Permitted Parent Company; PROVIDED, HOWEVER, that, so long as no Default, Event of its Restricted Subsidiaries, thenDefault or Designated Event shall have occurred and be continuing, the Borrower shall not be required to make a mandatory any such prepayment under this clause (ii) in with respect to any portion of such Net Cash Proceeds which are, within three months of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, applied to the payment of Permitted Upgrades; and
(iii) by an amount equal to 100% of the Net Cash Proceeds of any sale, transfer or (y) other disposition of any asset of the Borrower or any Subsidiary thereof (other than sales, transfers or dispositions of its Restricted Subsidiaries has committed to so reinvest the Subject Capacity described in clause (a) of Section 6.4 and dispositions resulting in aggregate Net Cash Proceeds not exceeding $1,000,000 during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration any fiscal year of the applicable periodBorrower); PROVIDED, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided thatHOWEVER, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory any such prepayment under this clause if such Net Cash Proceeds are, within three months of receipt, used to replace such assets disposed of with similar assets of at least substantially the same value, utility and useful life.
(iid) in respect If an Event of Loss shall occur, unless the affected portion of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it FLAG System is being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence repaired in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness5.19(b), the Borrower shall, promptly upon (and in any event not later than five on the third Business Days thereafter) Day following the receipt thereof of such Net Proceeds by the Borrower date on which insurance, condemnation or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds expropriation proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiarysuch Event of Loss, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent availableinsurance, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovecondemnation and/or expropriation proceeds received.
(ve) At The Borrower shall immediately prepay the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Cash Proceeds received in respect of any Permitted Sale Leaseback.
(wf) Refinancing Indebtedness (including Replacement Notes) incurred The proceeds of any Special Payments shall be used to refinance all or a portion of prepay the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 68.
Appears in 1 contract
Mandatory Prepayments. (a) If at any time (the “Collateral Deficiency Date”), the Collateral Coverage Ratio is less than 2.0 to 1.0, the Borrower shall either:
(i) [Reserved].Give notice to the Administrative Agent that it elects to reduce the Borrowing Base and prepay the Revolving Loans to the extent necessary to comply with the Collateral Coverage Ratio at such time whereupon the Borrowing Base shall be so reduced with immediate effect and the Borrower shall make such prepayment on or before the date that is 30 days after the related Collateral Deficiency Date and to the extent such prepayment of the aggregate principal amount of Revolving Loans then outstanding is insufficient to result in compliance with the Collateral Coverage Ratio, the Borrower shall, to the extent of such insufficiency, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent; or
(ii) No later than certify to the fifth Business Day following Administrative Agent that the receipt of Net Proceeds in respect Borrower has good and defensible title, free of any Prepayment Asset Sale Liens, to Proved Developed Properties in an amount which, if subject to one or Net Insurance/Condemnation Proceeds andmore Mortgages, during any Scheduled Wind-Down Periodwould result in the Borrower being in compliance with such Collateral Coverage Ratio, Net Proceeds and provide to each Lender the same information regarding such Proved Developed Properties as would be required for an evaluation of all ordinary course asset salesthe Collateral Value attributable thereto by the Required Lenders under Section 2.13. Within 10 days after such certification, the Required Lenders shall either (x) determine that such properties, if subject to a Mortgage, would result in the Borrower being in compliance with such Collateral Coverage Ratio, in each which case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) within 20 days of such Net Proceeds certification, and in any event, no later than within 30 days of the Collateral Deficiency Date, deliver a Mortgage (or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”a satisfactory amendment to an Existing Mortgage) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior with respect to each such Proved Developed Property, executed and delivered by a duly authorized officer of each party thereto and accompanied by such other documentation as the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) Administrative Agent shall reasonably request (including, without limitation, investments legal opinions in CRE Finance Assets form and Real Estate Investmentssubstance satisfactory to the Administrative Agent relating thereto) of or (y) determine that such properties, if subject to a Mortgage, would not result in the Borrower or any of its Restricted Subsidiariesbeing in compliance with such Collateral Coverage Ratio, thenin which case, the Borrower shall not be required to make a mandatory prepayment under the prepayments specified in subsection (i) of this clause (iiSection 3.2(a) in respect within 30 days of the Subject Proceeds Collateral Deficiency Date.
(b) If at any time (A) the Total Revolving Extensions of Credit exceed (B) the Borrowing Base at such time (such excess, the “Borrowing Base Deficiency”) the Administrative Agent shall give notice thereof to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down PeriodBorrowing Base Deficiency Notice”), 100% of the Net Proceeds of all ordinary course ) and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days 30 days after the date of such rejectionBorrowing Base Deficiency Notice, the Borrower shall either:
(i) be applied Give notice to the Administrative Agent that it elects to prepay the Subject Revolving Loans in an amount at least equal to the Borrowing Base Deficiency whereupon the Borrower shall make such prepayment on or before the date that is 60 days after the date of the Borrowing Base Deficiency and, to the extent required such prepayment of the aggregate principal amount of Revolving Loans then outstanding is less than such Borrowing Base Deficiency, the Borrower shall, to the extent of such shortfall, replace outstanding Letters of Credit and/or deposit an amount in accordance cash in a cash collateral account established with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio Administrative Agent for the Test Period most recently ended prior benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent; or
(ii) Give notice to the Administrative Agent that it elects to prepay the Revolving Loans in an aggregate amount equal to the Borrowing Base Deficiency (or, to the extent such prepayments of the aggregate principal amount of Revolving Loans then outstanding are less than the Borrowing Base Deficiency, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent) in six consecutive equal monthly installments, whereupon the Borrower shall pay the first such installment 30 days after the date of the Borrowing Base Deficiency and the next five such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with installments on the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate same day of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).each consecutive month thereafter; or
(iii) In (A) certify to the event Administrative Agent that the Borrower or has good and defensible title, free of any Liens, to oil and gas properties not included in the determination of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence Borrowing Base then in effect in an amount which, if taken into account in such determination, would eliminate the Borrowing Base Deficiency, and (B) provide to each Lender the same information regarding such properties as would be required for an evaluation of Indebtedness the value attributable thereto by the Required Lenders under Section 2.13 in calculating the Borrowing Base. Within 30 days after such certification, if the Required Lenders shall determine that taking into account such properties in the determination of the Borrowing Base would not be sufficient to result in the elimination of the Borrowing Base Deficiency, the Borrower shall either (x) make the prepayments specified in subsection (i) of this Section 3.2(b) immediately or (y) make the installment prepayments specified in subsection (ii) of this Section 3.2(b) with the first such installment due immediately.
(c) The Total Revolving Commitments shall be reduced by an amount equal to any Excess Amount and shall be accompanied by prepayment of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except Revolving Loans to the extent extent, if any, that the relevant Indebtedness constitutes Total Revolving Extensions of Credit exceed the Total Revolving Commitments as so reduced, provided that if the aggregate amount of Revolving Loans then outstanding is less than the amount of such Excess Amount (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or because L/C Obligations constitute a portion of any Class the Total Revolving Extensions of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such IndebtednessCredit), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that of the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiarybalance of such Excess Amount, as the case may be, for so long as the repatriation to the Borrower replace outstanding Letters of any such Credit and/or deposit an amount would be prohibited or delayed under any Requirement of Law or conflict in cash in a cash collateral account established with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability Administrative Agent for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation benefit of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, Lenders on terms and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice conditions satisfactory to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than the fifth Business Day following the Upon receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunderHoldings, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness of (such other Indebtednessi) Net Cash Proceeds arising from an Asset Sale, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (Recovery Event or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)Issuance, the Borrower shall, promptly upon shall immediately prepay the Loans (and or provide cash collateral in any event not later than five Business Days thereafterrespect of Letters of Credit) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply in an amount equal to 100% of such Net Cash Proceeds; (ii) any payment on the SwissCo Intercompany Note, the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to 100% of such payment; or (iii) Net Cash Proceeds arising from an Equity Issuance, the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to 50% of such Net Cash Proceeds; PROVIDED, HOWEVER, that in the case of any Net Cash Proceeds constituting the Reinvestment Deferred Amount with respect to a Reinvestment Event, the Borrower shall prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to such Reinvestment Event; PROVIDED, HOWEVER, that the amount of Net Cash Proceeds received in the same Fiscal Year from one or more Reinvestment Events that may be specified as Reinvestment Deferred Amounts in one or more Reinvestment Notices shall not exceed $20,000,000 in the aggregate for all such Net Cash Proceeds so received. Any such mandatory prepayment shall be applied in accordance with Section 2.9(c) below.
(b) If the Consolidated Leverage Ratio for the last day of any Fiscal Year is greater than 2.5, the Borrower shall prepay the Loans, on a date no later than 5 days after the earlier of (i) the date on the Financial Statements of the Borrower referred to in Section 5.1(a) for such Fiscal Year are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered, in an amount equal to 50% of Excess Cash Flow for such Fiscal Year. Any such mandatory prepayment shall be applied in accordance with Section 2.9(c) below.
(c) Any prepayments made by the Borrower required to be applied in accordance with this Section 2.9(c) shall be applied as follows: FIRST, to prepay the outstanding principal balance of the Term Loans, until such Term Loans shall have been prepaid in full; SECOND, to repay the outstanding principal balance of the Swing Loans, until such Swing Loans shall have been repaid in full; THIRD, 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 the manner set forth in Section 7.3 until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. All prepayments of the Term Loans made pursuant to this Section 2.9 shall be applied to reduce ratably the remaining installments of such outstanding principal amounts of the Term Loans of both Tranches on a pro rata basis, except that, so long as no Event of Default is continuing at the time of prepayment, any prepayment of the Term Loans arising pursuant to clause (ii) of Section 2.9(a), if the Borrower elects by written notice delivered to the Administrative Agent, shall be allocated between the Tranche A (Euro) Term Loan and Tranche B Term Loan as the Borrower shall designate in such notice (which designation shall not allocate a portion of such prepayment to a Tranche in excess of its then outstanding principal amount) and then applied to each Tranche in the respective amounts so designated to reduce ratably the remaining installments of such outstanding principal amount of such Tranche. All repayments of Revolving Loans and Swing Loans required to be made pursuant to Section 2.9(a) or (b) (or which would be required to be made had the relevant Class or Classes outstanding Revolving Loans and Swing Loans equaled the Revolving Credit Commitments then in effect) shall result in a permanent reduction of Term Loans the Revolving Credit Commitments as provided in accordance with clause (vi) belowSection 2.5(b).
(ivd) If at any time the aggregate Revolving Credit Outstandings exceed the aggregate Available Revolving Credit Commitments 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 in an amount equal to such excess.
(e) If at any time the aggregate Revolving Credit Euro Outstandings exceed $15,000,000, the Borrower shall forthwith prepay the Revolving Euro Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Euro Loans, the Borrower shall provide cash collateral for the Letter of Credit (Euro) Obligations in the manner set forth in Section 7.3 in an amount equal to such excess.
(f) Notwithstanding anything the foregoing provisions of this Section 2.9, if at any time any prepayment of the Loans pursuant to Section 2.9(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower owing amounts pursuant to Section 2.11(b2.14(e)) to as a result of LIBO Rate Loans being prepaid other than on the contrary:
last day of the then applicable Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, deposit the amounts that otherwise would have been paid in respect of such prepayment of such LIBO Rate Loans with the Administrative Agent (A) which deposit must be in the Applicable Currency of such LIBO Rate Loans and in respect of which deposit the Borrower shall not be required entitled to, and shall not, receive any interest or other investment return) to prepay any amount that would otherwise be held as security for the obligations of the Borrower to make such prepayment on the last day of such Interest Period (which deposit, in the Administrative Agent's sole discretion shall be pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent), with such cash collateral to be directly applied in prepayment of such LIBO Rate Loans upon the last day of such Interest Period; PROVIDED, HOWEVER, that, such unpaid LIBO Rate Loans shall continue to bear interest in accordance with the applicable provisions hereof until such unpaid LIBO Rate Loans have been prepaid.
(g) No mandatory prepayment of the Tranche A (Euro) Term Loans will be required as a result of any changes in the rate of exchange for Dollars and euro.
(h) No later than the time at which the Borrower makes any mandatory prepayment to be paid the Administrative Agent pursuant to this Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds2.9, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to notify the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) writing of the definition thereof; provided that, for amount of any such mandatory prepayment and the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.reason therefor. 49
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than If the fifth Business Day following the receipt Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 1,000,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall apply prepay the Obligations in an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) amount of all such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Cash Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) in the case of each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to reinvest, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Scheduled Wind-Down Period is Event of Default then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, thenexists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) Section in respect of the Subject such Net Cash Proceeds to the extent (x) the Subject such Net Cash Proceeds are so actually reinvested within 18 months following receipt thereofin such similar assets with such 365-day period. Promptly after the end of such 365-day period, or (y) the Borrower shall notify the Administrative Agent whether the Borrower or any of its Restricted Subsidiaries such Subsidiary has committed reinvested such Net Cash Proceeds in such similar assets, and to so reinvest the Subject Proceeds during extent such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Net Cash Proceeds have not been so reinvested prior to the expiration of the applicable periodreinvested, the Borrower shall promptly prepay the Subject Loans with Obligations in the amount of Subject such Net Cash Proceeds not so reinvested reinvested. The amount of each such prepayment shall be applied to the Revolving Loans until paid in full and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request following the occurrence and during the continuation of an Event of Default and pending any such reinvestment, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as set forth above in this clause (I)) (provided thatno Event of Default exists, with respect the Administrative Agent is authorized to this clause (I), disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s election direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date, the Borrower or any Subsidiary shall issue any new equity securities, other than equity securities issued in connection with the exercise of employee stock options and equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by written the terms hereof, if any, or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied to the Revolving Loans until paid in full and then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans and the L/C Obligations then outstanding shall be in excess of the Commitment, the Borrower shall within one (1) Business Day and without notice or demand pay over the amount of the excess to the Administrative Agent, expenditures and investments occurring prior to receipt Agent for the account of the relevant Subject Proceeds Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until payment in full and then to the Swing Loans until paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) The Borrower shall, on each date the Commitments are reduced pursuant to Section 2.9, prepay the Revolving Loans and not otherwise applied in respect Swing Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of any other prepayment required by this clause (ii))the aggregate principal amount of Revolving Loans, but after Swing Loans and L/C Obligations then outstanding to the definitive agreement governing amount to which the transaction from which such Subject Proceeds were generated was entered into, may be deemed to Commitments have been reinvested after receipt so reduced.
(v) Unless the Borrower otherwise directs, prepayments of such Subject ProceedsRevolving Loans under this Section 2.7(b) orshall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Swing Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned SubsidiaryEurodollar Loans, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior accrued interest thereon to the date of such required prepayment is less than or equal but shall not be subject to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate Section 8.1 hereof. Each prefunding of 100.0%), (y) the Net Proceeds Percentage L/C Obligations shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans made in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below7.4.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower There shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to become due and payable and Borrowers shall prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in and the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Revolving Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereofSwingline Loans, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by Section 2.1(e)(i)) in the terms hereof or thereof to prepay or offer to prepay such Indebtedness), following amounts and at the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contraryfollowing times:
(Ai) on the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iione hundredth (100th) above to day following the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiarylast day of each Fiscal Year, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict beginning with the fiduciary duties of such Foreign Subsidiary’s directorsFiscal Year ending December 31, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case2006, an amount equal to Excess Cash Flow for such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),Fiscal Year;
(Bii) promptly after the Borrower shall not be required to prepay date on which any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation Credit Party (or other intercompany distributionAdministrative Agent as loss payee or assignee) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of receives any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Major Casualty Proceeds, an amount equal to one hundred percent (100%) of the Subject Net Cash Proceeds such Major Casualty Proceeds; provided, that, so long as no Event of Default under Section 8.1(a) or Section 8.1(b) as a result of a violation of Article 6 has occurred and is continuing, the recipient (other than Administrative Agent) of any Major Casualty Proceeds may reinvest (or enter into a binding commitment to reinvest) the amount of such Major Casualty Proceeds within one hundred eighty (180) days, in replacement assets useful in the business of the Credit Parties; provided, that the aggregate amount which may be reinvested by the applicable Borrower and its Subsidiaries pursuant to the preceding proviso may not exceed $1,000,000 in any Fiscal Year; provided, further, that if the applicable Credit Party does not intend to fully reinvest or commit to reinvest such Major Casualty Proceeds, or if the time period set forth in this sentence expires without such Credit Party having reinvested or committed to reinvest such Major Casualty Proceeds, Borrowers shall prepay the Loans in an amount equal to the Net Cash Proceeds such Major Casualty Proceeds (to the extent availablenot reinvested, and not previously applied pursuant committed to this clause be reinvested or intended to be reinvested, as applicable within such time period);
(C), shall be promptly applied to the repayment iii) upon receipt by any Credit Party of the applicable Term Loans proceeds from the issuance and sale of any Debt or equity securities (other than (1) proceeds of Debt securities permitted pursuant to Section 2.11(b5.1, (2) proceeds of the issuance of equity securities by any Borrower received on or before the Closing Date, (3) proceeds from the issuance of equity securities to members of the management of any Credit Party or, so long as otherwise required above.
(v) At the Borrower’s optionno Event of Default is then in existence, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment Person that on the Closing Date owns equity securities of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.Borrower,
Appears in 1 contract
Mandatory Prepayments. confidential ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Apollo Mar 12, 2024 7:55 PM EDT
(i) [Reserved].
(ii) No later than the fifth Business Day following after the receipt date on which the financial statements with respect to each Fiscal Year of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andthe Borrower are required to be delivered pursuant to Section 5.01(b), during any Scheduled Wind-Down Periodcommencing with the Fiscal Year ending March 31, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year2025, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “prepay Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then below in effect and the Borrower does not notify the Administrative Agent in writing prior an aggregate principal amount equal to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) Excess Amount for the Subject Proceeds in the business (other than Excess Cash or Cash Equivalents) (includingFlow Period then most recently ended; provided, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunderrequired, the Borrower (or any of its Restricted Subsidiaries Subsidiary) is also required to Prepay prepay, repurchase or offer to prepay or repurchase any other Pari Passu Indebtedness that is secured on a pari passu basis with any portion of the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”)Excess Amount, then the relevant Person Borrower may apply such portion of the Subject Proceeds Excess Amount on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted relevant Pari Passu Indebtedness) to the prepayment of the Subject Loans and to the prepayment of the relevant Pari Passu Indebtedness, and the amount if such Other Applicable Indebtedness is issued with original issue discountof prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) at such time)shall be reduced accordingly; it being understood that (1x) the portion of the Subject Proceeds such Excess Amount allocated to the Other Applicable Pari Passu Indebtedness shall not exceed the amount portion of the Subject Proceeds such Excess Amount required to be allocated to the Other Applicable Pari Passu Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds such Excess Amount shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly hereof and (2y) to the extent the holders of the Other Applicable Pari Passu Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms hereof;
(ii) No later than the fifth Business Day following the receipt of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion in respect of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)Covered Disposition, the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, shall apply an amount equal to 100% of such the Net Proceeds received with respect thereto in excess of such thresholds (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of the relevant Class or Classes of Term Subject Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.clause
Appears in 1 contract
Sources: First Lien Credit Agreement
Mandatory Prepayments. (i) [Reserved]Upon the receipt of any Net Cash Proceeds of any Transfer by (or for the benefit of) Horizon Pharma or any of its Subsidiaries (other than (i) any Permitted License, the Net Cash Proceeds of which for all such Permitted Licenses from and after the Effective Date do not exceed $10,000,000 in the aggregate and which have been duly notified to the Administrative Agent and the Lenders in writing and (ii) any Transfer of Inventory in the ordinary course of business), each Lender may elect to require Borrowers to prepay its Term Loans, upon written notice given to Administrative Agent, the other Lenders and Borrowers (each such notice, a “Transfer Prepayment Election”) no later than ten (10) Business Days after receipt by the Administrative Agent of a Transfer Notice with respect to such Transfer, in which case Borrowers shall pay to the Administrative Agent, for distribution to the Lenders that have submitted a Transfer Prepayment Election within such ten (10) Business Day period, an amount equal to their respective Pro Rata Share of 100% of the Net Cash Proceeds received by Horizon Pharma or such Subsidiary in connection with such Transfer, such payment by the Borrowers to be on the date that is thirteen (13) Business Days after receipt by the Administrative Agent of the applicable Transfer Notice, to the extent such Net Cash Proceeds exceed $500,000 in the aggregate in any fiscal year. Nothing contained in this clause (i) shall permit any Borrower or any of their respective Subsidiaries to make a Transfer of any property that is not otherwise permitted by the terms of this Agreement. Borrowers shall promptly, and in any event no later than two (2) Business Days thereafter, notify Administrative Agent and Lenders in writing of the receipt (directly or indirectly) of Net Cash Proceeds of any Transfer by (or for the benefit of) Horizon Pharma or any of its Subsidiaries, other than those excluded as set forth above, which notice shall include reasonable detail as to the nature and amount thereof (each such notice, a “Transfer Notice”). After receipt by the Administrative Agent of a Transfer Prepayment Election from any Lender, the Administrative Agent shall, no later than two (2) Business Days thereafter, notify Borrowers and such Lender of its respective Pro Rata Share of the applicable prepayment. For the avoidance of doubt, no Change in Control Premium or Special Premium shall be payable in connection with a prepayment solely pursuant to this Section 2.2(c)(i).
(ii) No later than the fifth Business Day following Upon the receipt of Net Proceeds in any Extraordinary Receipts by (or for the benefit of) any Credit Party, each Lender may elect to require Borrowers to prepay its Term Loans, upon written notice given to Administrative Agent, the other Lenders and Borrowers (each such notice, an “Extraordinary Receipts Prepayment Election”) no later than ten (10) Business Days after receipt by the Administrative Agent of an Extraordinary Receipts Notice with respect to the receipt of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salessuch Extraordinary Receipts, in each casewhich case Borrowers shall pay to the Administrative Agent, in excess of $15,000,000 in any Fiscal Yearfor distribution to the Lenders that have submitted an Extraordinary Receipts Prepayment Election within such ten (10) Business Day period, the Borrower shall apply an amount equal to their respective Pro Rata Share of 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds Extraordinary Receipts received with respect thereto in excess of by such threshold Credit Party, such payment by the Borrowers to be on the date that is thirteen (collectively, the “Subject Proceeds”13) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify Business Days after receipt by the Administrative Agent of the applicable Extraordinary Receipts Notice. Borrowers shall promptly, and in any event no later than two (2) Business Days thereafter, notify Administrative Agent and Lenders in writing prior of the receipt of any Extraordinary Receipts by (or for the benefit of) any Credit Party, which notice shall include reasonable detail as to the date nature and amount thereof (each such notice, an “Extraordinary Receipts Notice”). After receipt by the Administrative Agent of an Extraordinary Receipts Prepayment Election from any Lender, the Administrative Agent shall, no later than two (2) Business Days thereafter, notify Borrowers and such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) Lender of its respective Pro Rata Share of the Borrower applicable prepayment. For the avoidance of doubt, no Prepayment Premium, Makewhole Amount, Change in Control Premium or any of its Restricted SubsidiariesSpecial Premium shall be payable in connection with a prepayment solely pursuant to this Section 2.2(c)(ii).
(iii) The foregoing to the contrary notwithstanding, then, the a Borrower shall not be required to make a mandatory prepayment under otherwise required pursuant to Section 2.2(c)(i) or Section 2.2(c)(ii) with Reinvestment Eligible Funds so long as: (A) no Default or Event of Default has occurred and is continuing on the date the applicable Credit Party receives such Reinvestment Eligible Funds or on the date such amounts are to be released from the Reinvestment Proceeds Account to the applicable Borrower for reinvestment pursuant to this clause Section 2.2(c)(iii), (iiB) in respect such Borrower delivers a notice (a “Reinvestment Notice”) on or prior to the date that the applicable Credit Party receives the monies constituting such Reinvestment Eligible Funds notifying Administrative Agent and the Lenders of the Subject Proceeds intent of such Credit Party to use such Reinvestment Eligible Funds (1) to repair, restore, or replace the extent assets that were the subject of the Transfer or Event of Loss giving rise to such amounts with long term assets (for the avoidance of doubt, which long term assets shall not include Inventory) of equal or greater fair market value which will be useful in the conduct of its business in accordance with past practice, (2) within the period specified in such notice, which period shall not exceed the earlier of (x) 180 days after the Subject Proceeds are so reinvested within 18 months following receipt thereof, or of such Reinvestment Eligible Funds by such Credit Party and (y) the Borrower Term Loan Maturity Date, and (C) pending the reinvestment described in clause (B)(1) above, such Reinvestment Eligible Amounts are deposited in a cash collateral account over which Administrative Agent (on behalf of the Secured Parties) has a perfected first-priority Lien pursuant to a Control Agreement in form and substance satisfactory to the Administrative Agent and the Required Lenders (the “Reinvestment Proceeds Account”). If all or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration portion of such 18 month Reinvestment Eligible Funds are not used within the period specified in the Reinvestment Notice (subject to the limitations set forth in the preceding sentence regarding the outside date of any such period), the remaining portion shall be applied to the Term Loans on the last day of such specified period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration or such lesser period as a result of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as limitations set forth above in this clause the preceding sentence) in accordance with Section 2.2(c)(i) or Section 2.2(c)(ii), as applicable.
(I)iv) Upon a Change in Control, each Lender may elect to require Borrowers to prepay its Term Loans in full, upon written notice given to Administrative Agent and Borrowers (provided thateach such notice, a “Change in Control Prepayment Election”) no later than ten (10) Business Days after receipt by the Administrative Agent of a Change in Control Notice with respect to this clause (I)the consummation of such Change in Control, at the Borrower’s election by written notice in which case Borrowers shall pay to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds for distribution to the extent the Subject Proceeds are so applied Lenders that have submitted a Change in Control Prepayment Election within 18 months following receipt thereof such ten (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any 10) Business Day period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms their respective Pro Rata Share thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds sum of the Term Loans of all Lenders that have submitted a Change in Control Prepayment Election together with an amount equal to the extent availableapplicable Change in Control Premium, and not previously applied pursuant such payment by the Borrowers to this clause be on the date that is thirteen (C), shall be promptly applied to 13) Business Days after receipt by the repayment Administrative Agent of the applicable Term Loans pursuant to Section 2.11(bChange in Control Notice. Borrowers shall promptly, and in any event no later than two (2) Business Days thereafter, notify Administrative Agent and Lenders in writing of the consummation of a Change in Control, which notice shall include reasonable detail as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time nature and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage other circumstances of such prepayment Change in Control (each such declined amountsnotice, the a “Declined ProceedsChange in Control Notice”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for . For the avoidance of doubt, no Prepayment Premium, Makewhole Amount or Special Premium shall be payable in connection solely with a prepayment pursuant to this Section 2.2(c)(iv).
(v) Each Lender may reject any prepayment made under Section 2.11(b)(iii) above elect to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred require Borrowers to refinance all or prepay a portion of its Term Loans on the first day of each fiscal quarter of Horizon Pharma, commencing with the fiscal quarter beginning April 1, 2013 by delivering an Amortization Election to the Administrative Agent, the other Lenders and the Borrowers no later than fifteen (15) calendar days preceding the beginning of each such fiscal quarter, which notice shall indicate such Lender’s election to require Borrowers to prepay a portion of its Term Loans and the aggregate amount of such Lender’s Term Loans (not to exceed $3,978,296 per Amortization Payment Date) such Lender is electing to require Borrowers to prepay. On the applicable Amortization Payment Date, Borrowers shall prepay to the Administrative Agent, for distribution to the Lenders that have delivered an Amortization Election no later than (15) calendar days preceding the beginning of the applicable fiscal quarter, an amount determined as follows:
(1) if all Lenders that have delivered Amortization Elections within such fifteen (15) calendar day period have elected, in the aggregate, to have $3,978,296 or less of their Term Loans prepaid, Borrowers shall prepay to the Administrative Agent, for distribution to each such Lender, the amount of each such Lender’s Term Loans that each such Lender has elected to have prepaid;
(2) if all Lenders that have delivered Amortization Elections within such fifteen (15) calendar day period have elected, in the aggregate, to have more than $3,978,296 of their Term Loans prepaid, Borrowers shall prepay to the Administrative Agent, for distribution to each such Lender, an amount of each such Lender’s Term Loans equal to the lesser of (x) $3,978,296 multiplied by such Lender’s Pro Rata Share, and (y) the amount of such Lender’s Term Loans such Lender has elected to have prepaid (the sum of all such resulting payments on such Amortization Payment Date, the “Initial Amortization Amount”). If the Initial Amortization Amount is less than $3,978,296 then each Lender that received less than the amount set forth in its Amortization Election as a result of the application of subclause (x) in the immediately preceding sentence (the “Specified Lenders”) shall also receive its Pro Rata Share (calculated on a basis taking into account only the Term Loans of the Specified Lenders) of an amount equal to $3,978,296 less the Initial Amortization Amount. For the avoidance of doubt, no Prepayment Premium, Makewhole Amount, Change in Control Premium or Special Premium shall be payable in connection solely with a prepayment pursuant to this Section 6.01(p2.2(c)(v), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved]The Loan is subject to mandatory prepayment, without premium or penalty, in certain instances of Insured Casualty or Condemnation (each a "CASUALTY/CONDEMNATION PREPAYMENT"), in the manner and to the extent set forth in Section 7.4.2. Each Casualty/Condemnation Prepayment shall be made on a Payment Date and include all accrued and unpaid interest on the Principal prepaid up to but not including such Payment Date.
(iib) No later than If, as of the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearConversion Date (before giving effect to a Rate Adjustment), the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, unpaid Principal exceeds the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements Re-sized Amount (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary"CONVERSION SHORTFALL"), then, on the Conversion Date, except to the extent Borrower, at the direction of Manager, elects to have Lender provide Senior Preferred Equity, Borrower shall not be required (i) prepay a portion of the Principal equal to make a mandatory prepayment under this clause such Conversion Shortfall (the "SPECIAL PREPAID PRINCIPAL") and (ii) in respect of pay to Lender (A) interest accrued at the Subject Proceeds Interest Rate on the Special Prepaid Principal to (but not including) the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness date of such Subsidiary) without reinvestment rights payment and (B) ifLender's Expenses, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountany. Except for Lender's Expenses, if any, of the Subject Proceeds such prepayment shall be allocated to without any Yield Maintenance Premium or other prepayment consideration. If Borrower, at the Subject Loans in accordance with the terms hereofdirection of Manager, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline elects to have such Indebtedness PrepaidLender finance Senior Preferred Equity, Lender shall make the declined Senior Preferred Equity investment in Borrower in an amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required as calculated in accordance with the terms of Schedule 2. If Borrower, at the direction of Manager, elects to have Lender finance Senior Preferred Equity, Lender shall have the right, in lieu of investing Senior Preferred Equity solely in the Borrower under this Section 2.11(b)(ii)Agreement, to invest Senior Preferred Equity indirectly in Borrower and in more than one Other Borrower by giving notice of such election to Borrower, Manager and each such Other Borrower. Notwithstanding If Borrower, at the foregoingdirection of Manager, except during a Scheduled Wind-Down Periodmakes such an election, Borrower shall, within twenty (20) days after such notice, (xi) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date form a limited liability company or limited partnership that is an Affiliate of such required prepayment Borrower and is less than a Special Purpose Bankruptcy Remote Entity whose sole managing member or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 sole general partner is a Special Purpose Bankruptcy Remote Entity wholly owned by Borrower Owner (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%an "UMBRELLA ENTITY"), (yii) transfer or cause the Net Proceeds Percentage shall be 25.0% if transfer of all equity interests in Borrower and each Other Borrower, other than interests owned by the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect Borrower Owner thereof, to such prepayment at a rate of 100.0%) Umbrella Entity, and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in and each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Other Borrower shall not amend its partnership or operating agreement or articles of incorporation to provide that all distributions of cash from whatever source will be required made to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for such Umbrella Entity so long as any Preferred Equity in such Umbrella Entity is outstanding. If the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict Senior Preferred Equity, when combined with the fiduciary duties of such Foreign Subsidiary’s directorsRe-sized Amount and the amount prepaid by Borrower, or result inif any, or would reasonably be expected to result indoes not equal the unpaid Principal, a material risk of personalany interest accrued at the Interest Rate on the Special Prepaid Principal, civil or criminal liability for any officerplus Lender's Expenses, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceedsany, and all fees and costs payable by Borrower hereunder on the distributed Subject Proceeds will be promptly Conversion Date, Lender shall have the right, at its option (and in any event but not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(bobligation), to decline all make (but not or cause its Affiliate to make) a portion) of its Applicable Percentage of such prepayment junior preferred equity investment in Borrower (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6."JUNIOR
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than In the fifth Business Day following the receipt of event and on each occasion that any Net Proceeds are received by or on behalf of any Loan Party in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)Event, the Borrower shall, promptly upon within one (and in any event not later than five 1) Business Days thereafter) the receipt thereof of Day after such Net Proceeds are received by the Borrower or its applicable Restricted SubsidiaryLoan Party, apply prepay the Advances, in an aggregate amount equal to 100% of such Net Proceeds (a “Mandatory Prepayment”).
(b) Notwithstanding the foregoing provisions of paragraph (a) above:
(i) with respect to prepay Prepayment Events resulting from the outstanding principal amount Disposition of any Inventory Facility Collateral, no prepayment of Advances shall be required prior to the next Inventory Facility Collateral Reporting Date. If on such Inventory Facility Collateral Reporting Date the aggregate of (x) the Inventory Value as of the relevant Class immediately preceding Inventory Test Date, plus (y) any amounts on deposit in the Inventory Collateral Deposit Account on the Inventory Facility Collateral Reporting Date, is less than the then Inventory Target Amount, then (unless the President’s Designee determines otherwise) an amount equal to such shortfall (the “Collateral Shortfall Amount”) will either, at the Borrower’s discretion, be (i) applied by the Borrower as a Mandatory Prepayment or Classes (ii) deposited by the Borrower into the Inventory Cash Collateral Account. So long as no Event of Term Loans Default is continuing at the time, the Borrower will be entitled to withdraw funds from the Inventory Collateral Deposit Account on any Inventory Facility Collateral Reporting Date to the extent the aggregate of (x) the Inventory Value on such Inventory Facility Collateral Reporting Date plus (y) the amount that will remain on deposit in accordance the Inventory Collateral Deposit Account after giving effect to such withdrawal, exceeds the then Inventory Target Amount;
(ii) with respect to Prepayment Events resulting from the Disposition of any Non-Inventory Current Asset Facility Collateral other than in the ordinary course of business (and other than as provided in clause (viv) below), Mandatory Prepayment of the Net Proceeds shall be required to the extent the aggregate Net Proceeds from all such Prepayment Events under this clause (ii) equal or exceed $10,000,000 in any fiscal year;
(iii) with respect to Prepayment Events resulting from the Disposition of any Other Asset Facility Collateral, Mandatory Prepayment of the Net Proceeds shall be required to the extent the aggregate Net Proceeds from such Prepayment Events under this clause (iii) equal or exceed $50,000,000 in any fiscal year, provided, however, that no Mandatory Prepayment shall be required in respect of an individual Disposition of any Other Asset Facility Collateral if the Net Proceeds from any such individual Disposition does not exceed $1,000,000; *** Confidential treatment requested pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
(iv) Notwithstanding anything with respect to Prepayment Events resulting from the incurrence by any Loan Party of any Indebtedness or any equity or other capital raises, as provided in this Section 2.11(bclause (iv) to of the contrary:
(A) definition of Prepayment Event, Mandatory Prepayment of the Borrower Net Proceeds shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant aggregate Net Proceeds from such Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed Events under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date equal or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and exceed $50,000,000 in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.fiscal year;
(v) At with respect to Prepayment Events resulting from the Borrower’s optionsale of any of Hummer, any Term Lender may electAC Delco, by notice Saab, Saturn***, or the Strasbourg, France facility, Mandatory Prepayment of the Net Proceeds shall be required except to the Administrative Agent at or prior to extent the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of President’s Designee determines that such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Net Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance purpose of doubtimplementing its Restructuring Plan; and
(vi) with respect to Prepayment Events resulting from the Disposition of Junior Lien Facility Collateral, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with Mandatory Prepayment of the Net Proceeds of shall be required.
(wc) Refinancing Indebtedness Unless and until all Advances have been paid in full and all other Obligations have been satisfied, the Lender shall only be required to release (including Replacement Notesand shall release) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), its Lien on Facility Collateral in connection with Dispositions (x) Incremental Term Loans incurred of Facility Collateral as to refinance all which the Disposition thereof requires a Mandatory Prepayment, and such Mandatory Prepayment is received by the Lender, or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred or Facility Collateral as to refinance all or which the Disposition thereof does not require any portion Mandatory Prepayment at the time of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6such Disposition.
Appears in 1 contract
Mandatory Prepayments. (ia) [ReservedIntentionally Omitted].
(iib) No later than the fifth Business Day following the Subject to clause (c) below, upon receipt by any Canadian Loan Party of Net Cash Proceeds in respect (but only if at the time of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds such receipt the Available Credit is less than 25% of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearthe Aggregate Borrowing Limit at such time), the Borrower shall apply an amount equal to 100% (within one Business Day after such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to receipt prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) provide cash collateral in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any Letters of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested Credit as set forth above in this clause (I)d) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (iibelow) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans as set forth in accordance with clause (vid) below.
(ivc) Notwithstanding anything in this Section 2.11(bclause (b) to above, as long as no Event of Default shall have occurred or be continuing on the contrary:
(A) date Net Cash Proceeds are received by any Canadian Loan Party, the Borrower shall not be required to prepay any so apply an amount that would otherwise be required equal to be paid pursuant to Section 2.11(b)(ii) above Net Cash Proceeds arising from a Reinvestment Event to the extent that all Net Cash Proceeds from all Reinvestment Events do not exceed $5,000,000 (in the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary aggregate since the Closing Date) and are actually used (or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as have been contractually committed to be used) to consummate a Permitted Acquisition or to purchase replacement or fixed assets (in the case may beof an Asset Sale) or repair or replace (in the case of a Property Loss Event) the sold, for so long as damaged or taken property within 180 days of the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties receipt of such Foreign Subsidiary’s directorsNet Cash Proceeds by a Canadian Loan Party and, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant pending application of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceedsproceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriationhas either (i) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, paid an amount equal to such Subject Net Cash Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the Administrative Agent to be held by the Administrative Agent in a Cash Collateral Account designated by the Administrative Agent or (ii) applied an amount equal to such Net Cash Proceeds in repayment of the Revolving Loans and the Administrative Agent shall have established an Availability Reserve in the amount of such repayment, which reserve shall ▇▇▇▇▇ on the Reinvestment Prepayment Date applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) such Net Cash Proceeds or earlier to the extent that Revolving Loans up to the relevant Subject amount of such Net Cash Proceeds are received used as set forth in the Reinvestment Notice with respect thereto; provided, however, that to the extent any asset subject to such Asset Sale or Property Loss Event constituted Collateral, any replacement, fixed or alternative assets acquired with Net Cash Proceeds shall, upon acquisition thereof by any joint venturea Canadian Loan Party, be subject to a perfected Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as having the distribution to the Borrower priority described in Section 4.20 of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, this Agreement and the distributed Subject Proceeds will be promptly Collateral Documents (and but, in any event not later than two Business Days after such distribution) applied to the repayment case of the applicable Term Loans pursuant to this Section 2.11(b) a Permitted Acquisition, only to the extent required herein (without regard to this by clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof); provided thatfurther, for however, in the avoidance event an Event of doubtDefault has occurred and is continuing after the provisions in this clause (c) become operative, no Lender may reject any prepayment made under Section 2.11(b)(iii) the Administrative Agent may, or shall at the direction of the Requisite Lenders, apply all amounts in the Cash Collateral Account referred to above to the extent that such prepayment is made with Obligations.
(d) Subject to the Net Proceeds provisions of clause (wc) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to above and Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.2.13
Appears in 1 contract
Mandatory Prepayments. The Borrower shall, and shall ensure that each Credit Party shall, prepay the Loan with the following amounts (ieach, a “Mandatory Prepayment Amount”) [Reserved].and at the following times:
(iia) No later the amount of all Disposal Proceeds, simultaneously upon receipt; and
(b) the amount of all Insurance Proceeds received by or on behalf of any Credit Party, simultaneously upon receipt, other than Insurance Proceeds which the fifth Business Day following Borrower indicated to the Lender in writing, has been previously re-invested in replacement assets, and provided that such Insurance Proceeds are actually reinvested in such replacement assets within thirty days of receipt of Net Proceeds such proceeds and such replacement assets are subject to perfected Liens with the Agreed Priority, failing which, all Advances shall immediately be prepaid in respect an amount equal to such Insurance Proceeds; and together with any of any Prepayment Asset Sale the foregoing prepayments of the Loan under (a) or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year(b) above, the Borrower shall apply simultaneously pay the Lender any accrued and unpaid interest on any part of the Loan so prepaid together with all other fees, charges and costs and other amounts payable hereunder and on the day any such prepayment is made, the Loan shall be deemed repaid in an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) product of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements Mandatory Prepayment Amount multiplied by *[REDACTED] (the “Subject LoansDiscounted Prepayment Amount”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and and, for the Borrower does not notify purpose of determining the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, thenremaining Monthly Repayment Ounces, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) Monthly Repayment Figures shall be reduced accordingly by the Discounted Prepayment Amount in a manner determined by the Lender, acting reasonably and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly in its sole discretion. Promptly (and in any event within ten five Business Days Days) after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above deliver to the extent that Lender a revised Schedule 1.1(b), showing the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiaryadjusted Monthly Repayment Figures, as the case may be, for so long as the repatriation all in form and substance satisfactory to the Borrower of any Lender. Furthermore, immediately and automatically upon such amount would be prohibited Disposal Proceeds or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject ProceedsInsurance Proceeds first arising, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, Commitment Amount shall be reduced by the Restricted Mandatory Prepayment Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.. ..
Appears in 1 contract
Sources: Loan Agreement (Gryphon Gold Corp)
Mandatory Prepayments. (a) If, for any fiscal year of the Borrower, including the fiscal year ending January 30, 2010, there shall be Consolidated Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Consolidated Excess Cash Flow toward the prepayment of the Term Loan as set forth in Section 2.8. Each such prepayment shall be made on the first Interest Payment Date occurring at least five Business Days (an “Excess Cash Flow Application Date”) after the earlier of (i) [Reserved]the date on which the financial statements of the Borrower referred to in Section 4.1(a)(i), 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.
(iib) No If on any date the Borrower or any Subsidiary shall receive Net Cash Proceeds from any Asset Disposition (other than a Disposition of J. ▇▇▇▇) or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 75% of such Net Cash Proceeds shall be applied no later than the fifth first Interest Payment Date occurring at least five Business Day following Days after the receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andSection 2.8; provided, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, that the Borrower may without penalty withhold amounts owing pursuant to this Section 2.7(b) until such time as the amount of Net Cash Proceeds received from all such Asset Dispositions and Recovery Events that would otherwise be required to be applied toward the prepayment of Term Loans pursuant to this Section 2.7(b) shall apply exceed $5,000,000 in the aggregate; provided, further, that, if the Net Cash Proceeds subject to a Reinvestment Notice are not used within six (6) months of delivery of such Reinvestment Notice for the purpose described therein, an amount equal to the Net Cash Proceeds not so used shall be applied no later than the first Interest Payment Date occurring at least five Business Days thereafter toward the prepayment of the Term Loan as set forth in Section 2.8.
(c) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from a Disposition of J. ▇▇▇▇, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied no later than the first Interest Payment Date occurring at least five Business Days following such Disposition, toward the prepayment of the Term Loan as set forth in Section 2.8.
(such percentage, as it may d) If any Indebtedness shall be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of incurred by the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause Subsidiaries (iiexcluding Indebtedness permitted by clauses (a) in respect through (e) of the Subject definition of Permitted Indebtedness), an amount equal to 100% of the Net Cash Proceeds to thereof shall be applied no later than the extent first Interest Payment Date occurring at least five Business Days after the date of such issuance or incurrence toward the prepayment of the Term Loan as set forth in Section 2.8.
(xe) No later than the Subject Proceeds are so reinvested within 18 months first Interest Payment Date occurring at least five Business Days following receipt thereof, or (y) the date of the issuance by Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any shares of its or their Capital Stock (other prepayment required by this clause than (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject ProceedsA) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay forms any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans Subsidiary in accordance with the terms hereof, and the amount issuance by such Subsidiary of the prepayment of the Subject Loans that would have otherwise been required pursuant Capital Stock to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01such Subsidiary, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), as applicable and (B) Incremental Term Loans incurred the issuance of Capital Stock of Borrower to refinance all or a portion directors, officers, and employees of any Class of Term Loans Borrower and its Subsidiaries pursuant to Section 2.22, employee stock option plans (Cor other employee incentive plans or other compensation arrangements) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required approved by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof board of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount directors of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either caseBorrower), an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment 50% of the applicable Term Loans pursuant to this Section 2.11(b) to Net Cash Proceeds thereof shall be applied toward the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation prepayment of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount Loan as set forth in clause (a)(vSection 2.8. The provisions of this Section 2.7(e) shall not be deemed to be implied consent to any such issuance otherwise prohibited by the terms and conditions of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6this Credit Agreement.
Appears in 1 contract
Mandatory Prepayments. (a) Within three Business Days after receipt by any Loan Party or any Subsidiary of any Loan Party of Net Cash Proceeds (or, in the case of CLAUSE (iii) below, upon the receipt by any Loan Party, or any Subsidiary of any Loan Party of any proceeds of any "Asset Sale", as defined in such clause, within one Business Day after the day such proceeds become subject to such clause) the following shall occur:
(i) [Reserved].
(ii) No later than to the fifth Business Day following the receipt of extent such Net Cash Proceeds in respect of any Prepayment arise from an Asset Sale Sale, Property Loss Event or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearDebt Issuance, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I)or, at the Borrower’s election by written notice to 's option, any other Loan Party for the Administrative Agent, expenditures and investments occurring prior to receipt benefit of the relevant Subject Proceeds Borrower) shall immediately prepay the Loans (and not otherwise applied or provide cash collateral in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt Letters of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (iiCredit) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds; PROVIDED, HOWEVER, that: 61 CREDIT AGREEMENT PRESTIGE BRANDS, INC.
(A) no such prepayment caused by the receipt of Net Cash Proceeds arising from an Asset Sale shall be required to the extent that the Dollar Equivalent of the sum of such Net Cash Proceeds and all other Net Cash Proceeds from Asset Sale received by the Parent or any of its Subsidiaries after the Closing Date does not exceed $5,000,000 (it being understood that a prepayment shall only be required of such excess to the extent such Dollar Equivalent exceeds $5,000,000);
(B) as long as no Event of Default shall have occurred and be continuing, no such prepayment caused by the receipt of Net Cash Proceeds arising from any incurrence of Additional Subordinated Debt shall be required if (1) the Administrative Agent has received an Additional Subordinated Debt Notice with respect of such incurrence and (2) such Net Cash Proceeds are intended to be used substantially contemporaneously with such incurrence for the Permitted Acquisition set forth in such Additional Subordinated Debt Notice; PROVIDED, FURTHER, that, notwithstanding the foregoing, such prepayment shall be required (in the percentages set forth above) in an amount equal to the Net Cash Proceeds of the Additional Subordinated Debt not used to fund substantially contemporaneously with the issuance of such Additional Subordinated Debt the Permitted Acquisition identified in the corresponding Additional Subordinated Debt Notice; and
(C) as long as no Event of Default shall have occurred and be continuing, no such prepayment caused by the receipt of Net Cash Proceeds arising from the disposition of any Investment in Stock or Stock Equivalents of Subsidiaries or Permitted Joint Ventures permitted to be made pursuant to CLAUSE (h), (m) or (n) of SECTION 8.3 (INVESTMENTS) shall be required if, on the date of such Asset Sale, the Leverage Ratio of the Parent, calculated on a Pro Forma Basis after giving effect to such disposition and any repayment of Indebtedness to be made with the proceeds thereof, is less than 5.50 to 1.00;
(ii) to the extent such Net Cash Proceeds arise from an Equity Issuance, the Borrower (or, at the Borrower's option, any other Loan Party for the benefit of the Borrower) shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to (A) 50% of such Net Cash Proceeds or (B) if the Leverage Ratio of the Parent is less than 4.50 to 1 for the most recent four Fiscal Quarter period for which a Compliance Certificate has been delivered pursuant to SECTION 6.1(d) (REPORTING COVENANTS) ended prior to such Equity Issuance calculated PRO FORMA after giving effect to such Equity Issuance and any payment of Indebtedness to be made with the proceeds thereof, 0% of such Net Cash Proceeds; PROVIDED, HOWEVER, that no such prepayment shall be required pursuant to this CLAUSE (ii) because of the receipt of the Net Cash Proceeds of any Equity Issuance of Stock or Stock Equivalents (other than Disqualified Stock), (x) if such Equity Issuance is made to the Sponsor or to holders of the Stock of the Ultimate Parent that were holders of such Stock on the date hereof (after giving effect to the Transactions), and any other holder thereafter which is exercising existing pre-emptive rights or (y) if such Equity Issuance is made in connection with a Permitted Acquisition, Investments permitted under CLAUSE (h)(iii), (m) or (n) of SECTION 8.3 (INVESTMENTS), Capital Expenditures permitted hereunder or management buybacks permitted under SECTION 8.5(c)(iii) (RESTRICTED PAYMENTS); and PROVIDED, FURTHER, that, 62 CREDIT AGREEMENT PRESTIGE BRANDS, INC. notwithstanding CLAUSE (y) of the preceding proviso, such prepayment pursuant to CLAUSE (y) shall be required (in the percentages set forth above) in an amount equal to the amount of such Net Cash Proceeds that are not used for purposes identified in such CLAUSE (y) within 270 days after the date of the date of the consummation of such Equity Issuance (including, if the Permitted Acquisition identified in such Equity Issuance Notice has been abandoned, the use of such Net Cash Proceeds to consummate another Permitted Acquisition permitted hereunder); and
(iii) notwithstanding the foregoing in this CLAUSE (a) and notwithstanding CLAUSE (e) BELOW, at any time when any Loan Party, any Subsidiary of any Loan Party or any Joint Venture of any of them consummates any "ASSET SALE" or "EQUITY ISSUANCE", as defined in any Subordinated Notes Document (together with any word of similar applications defined in any Subordinated Debt Document or any Disqualified Stock Document), at any time when, and to the extent, in the absence of any requirement to prepay the outstanding principal amount Secured Obligations hereunder, the Borrower would be required to prepay, or make an offer to purchase, any Subordinated Debt or Disqualified Stock, the Borrower (or, at the Borrower's option, any other Loan Party for the benefit of the relevant Class Borrower) shall immediately prepay the Loans (or Classes provide cash collateral in respect of Term Loans Letters of Credit) in an amount not to exceed the proceeds of such "Asset Sale". Any such mandatory prepayment shall be applied in accordance with clause CLAUSE (vic) below.
(ivb) The Borrower (or, at the Borrower's option, any other Loan Party for the benefit of the Borrower) shall prepay the Loans within 90 days after the last day of each Fiscal Year beginning with the Fiscal Year 2005, in an amount equal to the difference between (i) 50% of the Excess Cash Flow for such Fiscal Year (or, in the case of Fiscal Year 2005, the period beginning on the Closing Date and ending on the last day of such Fiscal Year) and (ii) optional cash principal payments on the Loans made during such Fiscal Year (but only, in the case of payment in respect of Revolving Loans, to the extent that the Revolving Credit Commitments are permanently reduced by the amount of such payments); PROVIDED, HOWEVER, that, if the Leverage Ratio of the Parent on the last day of such Fiscal Year is less than 4.25 to 1, then no such prepayment shall be required. Any such mandatory prepayment shall be applied in accordance with CLAUSE (c) below.
(c) Subject to the provisions of SECTION 2.13(g) (PAYMENTS AND COMPUTATIONS) and CLAUSE (e) below, any prepayments required to be applied in accordance with this CLAUSE (c) shall be applied as follows: FIRST, to repay the outstanding principal balance of the Tranche B Loans, until such Tranche B Loans shall have been paid in full; SECOND, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been paid in full; THIRD, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; FOURTH, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 102% of such 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; and THEN, to repay the outstanding principal balance of all Tranche C Loans until such Tranche C Loans shall have been paid in full; PROVIDED, HOWEVER, that, at any time prior to the occurrence and continuation of any Event of Default, any mandatory prepayment required by the receipt of Net Cash Proceeds of any Asset Sale permitted under SECTION 8.4(j) (SALE OF ASSETS) of non-core assets previously acquired as part of a Permitted Acquisition and with respect to which the Administrative Agent has received a Permitted Acquisition Notice shall be first applied to repay the Revolving Loans 63 CREDIT AGREEMENT PRESTIGE BRANDS, INC. and Swing Loans in an amount not to exceed the amount identified in such Permitted Acquisition Notice as part of a Borrowing the proceeds of which were used consummate such Permitted Acquisition. If any mandatory prepayment of the Tranche C Loans is required to be made pursuant to this CLAUSE (c) because of the receipt of Net Cash Proceeds of any Equity Issuance or Debt Issuance, the Borrower shall pay on the date of such prepayment to the Administrative Agent, for the ratable benefit of the Tranche C Lenders, an additional amount equal to the Prepayment Percentage of the principal amount of the Tranche C Loans so repaid. All prepayments of the Term Loans of any Tranche made pursuant to this CLAUSE (c) shall be applied FIRST to prepay the next four principal installments of the Term Loans of such Tranche in order of their maturity and THEN to prepay the remaining principal installments thereof ratably. All repayments of Revolving Loans and Swing Loans required to be made pursuant to this CLAUSE (c) because of Asset Sales (other than any prepayment of the Revolving Loans or Swing Loans required to be made solely to the extent of a Borrowing thereof made to consummate a Permitted Acquisition, as set forth in a Permitted Acquisition Notice) or Property Loss Events (but not repayments required to be made because of Debt Issuances, Equity Issuances or Excess Cash Flow) shall result in a permanent reduction of the Revolving Credit Commitments to the extent provided in SECTION 2.5(b) (TERMINATION OF THE COMMITMENTS).
(d) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments at such time, the Borrower (or, at the Borrower's option, any other Loan Party) 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 payment in full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrower (or, at the Borrower's option, any other Loan Party) 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 102% of such excess.
(e) Notwithstanding anything the foregoing clauses in this Section 2.11(bSECTION 2.9 (other than CLAUSE (a)(iii) above, upon the occurrence of any Asset Sale or Property Loss Event in respect of which a Responsible Officer of the Parent has delivered a Reinvestment Notice (a "REINVESTMENT EVENT"), all of the following shall occur:
(i) Upon receipt of the Net Cash Proceeds subject to such Reinvestment Notice (as long as no Event of Default shall have occurred and be continuing), the contraryBorrower shall be permitted to make Permitted Reinvestments in an amount not to exceed the amount of such Net Cash Proceeds, as set forth in the Reinvestment Notice for such Net Cash Proceeds, and shall not be required to prepay the Loans as provided in CLAUSE (a) above.
(ii) On each Reinvestment Prepayment Date for such Reinvestment Event:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, Tranche B Loans in either case, an amount equal to the Reinvestment Prepayment Amount applicable to such Subject Proceeds will be promptly applied Reinvestment Prepayment Date;
(net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(bB) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower such Tranche B Loans shall not be required to prepay any amount that would otherwise be required to then be paid pursuant to Section 2.11(b)(ii) to in full, the extent that the relevant Subject Proceeds are received Revolving Credit Commitments shall then be permanently reduced by any joint venture, in each case, solely with respect an amount equal to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower remaining portion of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision Reinvestment Prepayment Amount not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))repay such Tranche B Loans; and CREDIT AGREEMENT PRESTIGE BRANDS, andINC.
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiaryno Revolving Credit Commitment shall remain outstanding after such reduction, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, Tranche C Loans in an amount equal to any remaining portion of such Reinvestment Prepayment Amount not applied to repay Tranche B Loan or to reduce the Subject Proceeds to Revolving Credit Commitments. In addition, the extent available, and not previously applied Borrower shall make any payment required pursuant to this clause CLAUSE (C), shall be promptly applied to the repayment d) above as a result of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and such reduction in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion Revolving Credit Commitments. All prepayments of the Term Loans of any Tranche made pursuant to Section 6.01(p), this CLAUSE (xe) Incremental Term Loans incurred shall be applied to refinance all or a portion of the Term Loans pursuant to Section 2.22, remaining installments thereof in the manner set forth in CLAUSE (yc) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6above.
Appears in 1 contract
Sources: Credit Agreement (Prestige Brands International, Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing 71 the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary)Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 70.0% and greater than 0.50 to 1.00 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 64.5% and greater than 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.050.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Senior Debt to Equity Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 10025.0%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed 72 under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofBorrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.6.01
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Mandatory Prepayments. The Borrower shall, and shall ensure that each Credit Party shall, prepay the Loan with the following amounts (ieach, a “Mandatory Prepayment Amount”) [Reserved].and at the following times:
(iia) No later the amount of all Disposal Proceeds, simultaneously upon receipt; and
(b) the amount of all Insurance Proceeds received by or on behalf of any Credit Party, simultaneously upon receipt, other than Insurance Proceeds which the fifth Business Day following Borrower indicated to the Lender in writing, has been previously re-invested in replacement assets, and provided that such Insurance Proceeds are actually reinvested in such replacement assets within thirty days of receipt of Net Proceeds such proceeds and such replacement assets are subject to perfected Liens with the Agreed Priority, failing which, all Advances shall immediately be prepaid in respect an amount equal to such Insurance Proceeds; and together with any of any Prepayment Asset Sale the foregoing prepayments of the Loan under (a) or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year(b) above, the Borrower shall apply simultaneously pay the Lender any accrued and unpaid interest on any part of the Loan so prepaid together with all other fees, charges and costs and other amounts payable hereunder and on the day any such prepayment is made, the Loan shall be deemed repaid in an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) product of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements Mandatory Prepayment Amount multiplied by *[REDACTED] (the “Subject LoansDiscounted Prepayment Amount”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and and, for the Borrower does not notify purpose of determining the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, thenremaining Monthly Repayment Ounces, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) Monthly Repayment Figures shall be reduced accordingly by the Discounted Prepayment Amount in a manner determined by the Lender, acting reasonably and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly in its sole discretion. Promptly (and in any event within ten five Business Days Days) after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above deliver to the extent that Lender a revised Schedule 1.1(b), showing the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiaryadjusted Monthly Repayment Figures, as the case may be, for so long as the repatriation all in form and substance satisfactory to the Borrower of any Lender. Furthermore, immediately and automatically upon such amount would be prohibited Disposal Proceeds or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject ProceedsInsurance Proceeds first arising, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, Commitment Amount shall be reduced by the Restricted Mandatory Prepayment Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Sources: Loan Agreement (Gryphon Gold Corp)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than the fifth Business Day following the Immediately upon receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of Net Cash Proceeds of any Class of Term Loans pursuant to Section 6.01(p)Asset Sale or Recovery Event, (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans the Borrower shall prepay the Obligations in accordance with the requirements of Section 9.02(c2.12(d) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, such Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any be applied until the aggregate amount that would otherwise be required of the Net Cash Proceeds is in excess of (x) $250,000 with respect to be paid pursuant all such Asset Sales or Recovery Events made during the Fiscal Year ending December 31, 2018 and (y) $500,000 with respect to Section 2.11(b)(iiall such Asset Sales or Recovery Events made during the Fiscal Year ending December 31, 2019 and each Fiscal Year ending thereafter, and (ii) above at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Asset Sale or Recovery Event), to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant such Net Insurance/Condemnation Cash Proceeds are received reinvested or committed to be reinvested in assets (excluding current assets as classified in accordance with GAAP) within one hundred eighty (180) days after the receipt of such Net Cash Proceeds and, if committed to be reinvested, actually reinvested in assets (excluding current assets as classified in accordance with GAAP) within two hundred seventy (270) days after the receipt of such Net Cash Proceeds; provided that if such Net Cash Proceeds shall not have been so reinvested, such prepayment shall be due immediately upon the expiration of the applicable period.
(b) Immediately upon the receipt by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower or any of its Subsidiaries of Net Cash Proceeds of any such amount would be prohibited or delayed issuance of Indebtedness (other than Indebtedness permitted under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject ProceedsSection 7.1), the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriationprepay the Obligations in accordance with Section 2.12(d) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will Net Cash Proceeds.
(c) Any prepayments made by the Borrower pursuant to Sections 2.12(a) or (b) above shall be promptly applied (net as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of additional Taxes that would be 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 or reserved against as a result pursuant to any of repatriating such amounts) the Loan Documents, pro rata to the repayment 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 applicable Term Loan A and any then existing Incremental 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 to the remaining principal installments thereof (including the Maturity Date thereof) on a pro rata basis; 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 this Section 2.11(b) to clauses fifth through seventh above, unless a Default or an Event of Default has occurred and is continuing and the extent required herein (without regard to this clause (iv))),Required Revolving Lenders so request.
(Bd) 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 not 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 2.19. Each prepayment shall be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) applied first to the Swingline Loans to the full extent that thereof, second to the relevant Subject Proceeds are received by 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 Commitments, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any joint ventureaccrued and unpaid fees thereon. Notwithstanding any other provision of this Section 2.12, in each case, solely with respect to any joint venture that is amount of Net Cash Proceeds subject to Section 2.12(a) or 2.12(b) attributable to a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if in the event the Borrower determines in good faith in consultation with the Administrative Agent that the repatriation (or other intercompany distribution) upstreaming of cash equal to the Borrower, directly or indirectly, from a such amount by such Foreign Subsidiary as a distribution (i) would violate any local Law (e.g., financial assistance, thin capitalization, corporate benefit, or dividend the fiduciary and statutory duties of the directors of such Foreign Subsidiary) or any term of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable Organization Document applicable to such Foreign SubsidiarySubsidiary required by Law, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(iior (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a cause any material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Borrower and its Subsidiaries, then such amount shall be excluded from such Net Cash Proceeds; provided, an amount equal that for one (1) year from the date on which the obligation to make the Subject Proceeds applicable prepayment arose, the Borrower and such Foreign Subsidiary shall use all commercially reasonable efforts to the extent availableovercome or eliminate any such restrictions or minimize any such costs of prepayment and, and not previously applied pursuant to this clause (C)if successful, shall be promptly applied to the repayment of make the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At prepayment, unless the Borrower’s option, any Term Lender may elect, by notice to Borrower shall have determined in good faith in consultation with the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with actions would require the Net Proceeds expenditure of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion material amount of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6funds.
Appears in 1 contract
Sources: Credit Agreement (Primo Water Corp)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Within 10 Business Days after the fifth Business Day following the receipt of Net Proceeds in respect consummation of any Prepayment Asset Sale sale or Net Insurance/Condemnation Proceeds andother disposition of Property (including the sale or other disposition of Receivables) by the Borrower or any Subsidiary if the aggregate fair market value of the consideration received by the Borrower or its Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Subsidiaries for all other such sales or other dispositions consummated during any Scheduled Wind-Down Periodthe period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, Net Proceeds of all ordinary course asset sales, in each case, in excess of exceeds $15,000,000 in any Fiscal Year25,000,000, the Borrower shall apply 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 Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the 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 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Ratable Share of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Net Cash Proceeds not so reinvested certified in such Officer’s Certificate (or such lesser principal amount as set forth above in this clause (I)) (provided that, with respect to this clause (Ishall then be outstanding), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt 100% of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after principal amount so prepaid. Notwithstanding the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) orforegoing, (IIi) apply the Subject Proceeds up to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Cash Proceeds of all ordinary course and non-ordinary course asset such sales or other dispositions with respect to which the Borrower shall be applied to repay have given the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing Administrative Agent written notice (or set forth in the case applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) of its intention to repair or replace the Property subject to any such proceeds relating to a sale or other event with respect to 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 Restricted Subsidiary Guarantor or a JV Entity permitted hereunder (and provided that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness Guarantor or JV Entity is issued with original issue discount) at a newly formed Person, such time); it being understood that (1) Person shall promptly use the portion of the Subject Net Cash Proceeds allocated 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 Other Applicable Indebtedness shall not exceed the amount provisions of the Subject Proceeds required to be allocated first two sentences of this clause (a) unless and to the Other Applicable Indebtedness pursuant to the terms thereofextent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the remaining amount, if any, 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 Subject 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 be allocated have been subject to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(iiReinvestment) shall be reduced accordingly and (2) subject to the extent the holders provisions of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms first two sentences of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, clause (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%a).
(iiib) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be Any prepayments made by the Borrower pursuant to Section 2.11(b), 2.12(a) above shall be applied by the Administrative Agent as follows: first to decline all repay Term Loans on a pro rata basis as to each of Term Loan A and Term Loan A-1 (but not a portion) of its Applicable Percentage with the application of such prepayment to be, as to each of Term Loan A and Term Loan A-1, to the remaining scheduled principal installments owing in respect of such Term Loan under Section 2.9(c) on a pro rata basis (including the final installment due and payable on each such declined amountsTerm 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 “Declined Proceeds”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 case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount shall have no interest other than as set forth in clause (a)(v) Section 8.2. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the ratable benefit of the definition thereof; provided thatLenders and the Issuing Bank, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance a Lien in all or a portion of the Term Loans 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 Section 6.01(p)this Section, (x) Incremental Term Loans incurred to refinance the Revolving Credit Exposure of all or a portion Lenders is less than the lesser of the Term Loans pursuant to Section 2.22(i) Aggregate Revolving Commitment and (ii) the Borrowing Base, in each case, then in effect, for a period of at least ten (10) consecutive Business Days, and (y) Replacement Term Loans incurred no Default or Event of Default then exists, the funds in the LC Collateral Account shall be released by the Administrative Agent to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Borrower.
Appears in 1 contract
Mandatory Prepayments. (1) Subject to subsection (4) hereof, the Borrower agrees to make the following mandatory prepayments (“Mandatory Prepayments”).
(2) An amount equal to the Net Proceeds from any Disposition of any Assets in excess of C$10,000,000 by the Borrower (other than any Disposition of Assets permitted pursuant to clauses (i) [Reserved].
and (ii) No later than of Section 8.02(d) or any Disposition of Assets previously acquired as part of a Tax Benefit Transaction) shall be applied within 365 days of receipt to the fifth Business Day following prepayment and permanent reduction of Accommodations Outstanding under (i) firstly, the receipt Term Facilities, on a pro rata basis, and (ii) secondly, the Revolving Facility (provided that the Revolving Commitment shall not be reduced as a result of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salessuch payment), in each case, in excess of $15,000,000 in any Fiscal Yearaccordance with Section 2.09 hereof, except (i) to the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, extent that the “Net Proceeds Percentage”) from such Disposition of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto Assets are reinvested in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business a manner permitted hereunder (other than Cash in cash or Cash Equivalents) in the Business within twelve months of the date of the Disposition and (includingii) that the Borrower shall be entitled to keep Net Proceeds which should have been applied in accordance with the foregoing up to an aggregate amount which does not exceed C$100,000,000 for the Term of the Credit Facilities.
(3) An amount equal to 50% of the Net Proceeds from the issuance of any securities (other than the Back-to-Back Securities, without limitationthe Existing Back-to-Back Securities and Debt securities, investments but including Debt securities of the nature described in CRE Finance Assets and Real Estate Investmentsclause (viii) of the definition of “Debt” (other than Back-to-Back Securities)) by the Borrower shall be applied within 365 days of receipt to the prepayment and permanent reduction of the Accommodations Outstanding under (i) firstly, the Term Facilities, on a pro rata basis, and (ii) secondly, the Revolving Facility (provided that the Revolving Commitment shall not be reduced as a result of such payment), in each case in accordance with Section 2.09 hereof, except to the extent that within 12 months of such issuance, the Net Proceeds are invested, directly or any indirectly, by way of equity contribution or loans or advances in Videotron Ltée or are used to purchase Assets that will form part of the Collateral.
(4) The Borrower shall advise the Administrative Agent of its Restricted Subsidiariesintention to make any such Mandatory Prepayment by notice in writing substantially in the form of Schedule 2, thenat least 10 and not more than 20 Business Days before the Mandatory Prepayment is due, and shall pay the amount of such Mandatory Prepayment to the Administrative Agent when it is due. In addition, the Borrower shall, at the same time, make a written offer (an “Offer”) to the Facility B Lenders, by sending such Offer, substantially in the form of Schedule 3, to the Administrative Agent for distribution to the Facility B Lenders, setting out the entitlement of each such Lender to such Mandatory Prepayment (other than any Unacceptable Payment, as defined below). Each Facility B Lender shall irrevocably respond to the Offer, with a copy to the Administrative Agent, at least 3 Business Days’ before the Mandatory Prepayment is due. Failure on the part of any Facility B Lender to so respond shall be deemed an acceptance of the Offer by such Facility B Lender. All proceeds of each Mandatory Prepayment shall be applied ratably amongst the Facility B Lenders to repay and permanently reduce Facility B in inverse order of maturity. However, the Borrower shall not be required obliged to make an Offer and the Facility B Lenders shall not accept any Mandatory Repayment if, as a mandatory prepayment under this clause (ii) in respect result thereof, the Facility B Lenders would receive, within 5 years and 10 days from the date of the Subject Proceeds first Advance under Facility B, an amount that, when added to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed scheduled repayments contemplated by Section 2.04 and to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested all other Mandatory Prepayments made prior to the expiration of the applicable periodthat date, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100equal to or would exceed 25% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereofinitial Accommodation under Facility B (an “Unacceptable Payment”). If any Facility B Lender does not accept any such Mandatory Repayment, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans such Mandatory Repayment that would have otherwise been required pursuant paid to this Section 2.11(b)(ii) such Facility B Lender shall be reduced accordingly and (2) paid to the extent other Facility B Lenders to reduce the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (Commitments under Facility B and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans then to the extent required in accordance with Revolving Lenders to reduce the terms of this Section 2.11(b)(ii). Notwithstanding Accommodations Outstanding (but not the foregoing, except during a Scheduled Wind-Down Period, (xCommitments) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted AmountRevolving Facility; provided that to if there are no Accommodations Outstanding under the extent that the repatriation (or other intercompany distribution) of the relevant Subject ProceedsRevolving Facility at such time, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an such amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will Borrower. No such Mandatory Prepayment may be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent on a date that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all would require a Libor Advance or a portion of the Term Loans pursuant BA Instrument to Section 6.01(p)be prepaid, (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans except in accordance with the requirements provisions of Section 9.02(c12.06(4), and/or provided that the Borrower may cash collateralize such Libor Advances (zand BA Instruments) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements provisions of Section 62.10.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Until the fifth Business Day following Rollover Date, if the receipt of Borrower or any Subsidiary receives any Net Cash Proceeds in respect of from any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearSale, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and Loans in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply 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 Cash Proceeds were repatriated to the United States) or reserved against as a result thereof) in accordance with Section 2.10(b)(vi) on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds; provided that no such offer to make a prepayment shall be required pursuant to this Section 2.10(b)(i)(A) with respect to such Net Cash Proceeds that the Borrower shall reinvest in accordance with Section 2.10(b)(i)(B).
(b) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale, at the option of the Borrower the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for the Borrower’s or a Subsidiary’s business within twelve (12) months following receipt of such Net 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 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) If the Borrower receives any amounts pursuant to Section 1.4 of the Acquisition Agreement referred to in clause (ii) of the definition thereof, the Borrower shall offer to prepay the outstanding principal Loans within five (5) Business Days after the date of receipt of such amounts in an amount equal to 100% of the relevant Class amounts received except to the extent such amount is required to prepay any Indebtedness of the Borrower secured by any Liens on the assets of the Borrower or Classes any of Term Loans in accordance with clause (vi) belowits Subsidiaries.
(iv) Notwithstanding anything The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clause (i) or (iii) of this Section 2.11(b2.10(b) at least three (3) Business Days prior to the date of such prepayment and or any prepayment pursuant to clause (iii) of this Section 2.10(b) at least ten (10) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share of the prepayment.
(v) Notwithstanding any other provisions of this Section 2.10(b) to the contrary:
, to the extent that any or all the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.10(b)(i) (Aa “Foreign Disposition”) are prohibited or delayed by applicable local Law from being repatriated to the Borrower shall United States, the portion of such Net Cash Proceeds so affected will not be required to prepay any amount that would otherwise be required applied to offer to repay Loans at the times provided in this Section 2.10(b) but may be paid pursuant to Section 2.11(b)(ii) above to retained by the extent that the relevant Prepayment Asset Sale is consummated by any applicable Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiaryso long, but only so long, as the case may be, for so long as the applicable Law will not permit or delays repatriation to the United States (the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with hereby agreeing to cause the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such applicable Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall promptly take all commercially reasonable actions reasonably required by the applicable Requirements of Law to permit such repatriation) (it being understood that if the ), and once such repatriation of the relevant Subject any of such affected Net Cash Proceeds is permitted under the applicable Requirement of Law andLaw, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds repatriation will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating effected and such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject repatriated Net Cash Proceeds will be promptly (and in any event not later than two five (5) Business Days after such distributionrepatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b2.10(b) to the extent required herein (without regard to this clause (iv))provided herein; provided, and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiaryhowever, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the Borrower has determined in good faith that repatriation (of any of or other intercompany distribution) all the Net Cash Proceeds of the relevant Subject Proceeds, directly or indirectly, from the relevant any Foreign Subsidiary Disposition would no longer have a material adverse tax consequence within consequences, the 365 day period 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 event giving rise to the relevant Subject date of receipt of such Net Cash Proceeds, (x) the Borrower shall apply an amount equal to the Subject such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds had been received by the extent availableBorrower rather than such Foreign Subsidiary, and not previously applied pursuant less the amount of additional taxes that would have been payable (or that would be payable if the Net Cash Proceeds were repatriated to this clause the United States) or reserved against if such Net Cash Proceeds had been repatriated or (C), y) such Net Cash Proceeds shall be promptly applied to the repayment of the applicable Term Indebtedness of a Foreign Subsidiary.
(vi) Each prepayment of Loans pursuant to this Section 2.11(b2.10(b) as otherwise required above.
(v) At shall be offered to the Borrower’s option, any Term Lender may elect, by notice Lenders on a pro rata basis pursuant to procedures satisfactory to the Administrative Agent at or prior (it being understood that any Lender may decline to participate in any such prepayment).
(vii) Any prepayment of Loans pursuant to this Section 2.10(b) shall be accompanied by (i) accrued interest to the time extent required by Section 2.12, (ii) break funding payments to the extent required by Section 2.15 and (iii) in the manner specified by the Administrative Agent, prior to any case of a prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b)2.10(b)(ii) following the occurrence of a Demand Failure Event, a premium equal to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) 1% of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion principal amount of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6prepaid.
Appears in 1 contract
Sources: Interim Loan Agreement (Constellation Brands, Inc.)
Mandatory Prepayments. (i) [Reserved]From and after the Restatement Date, if LGEC or any Restricted Subsidiary shall at any time or from time to time incur any Indebtedness (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 7.1 (other than Refinancing Indebtedness, Refinancing Notes and Refinancing Term Loans and Replacement Revolving Credit Commitments to the extent the proceeds are used to finance Term Loans)), then promptly and in any event within five (5) Business Days of receipt by LGEC or the Restricted Subsidiary of the Net Cash Proceeds from the incurrence of such Indebtedness, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds. The amount of each such prepayment shall be applied to the outstanding Term Loans of each Class, pro rata, until paid in full.
(ii) No later than From and after the fifth Business Day following the receipt of Net Proceeds in respect of Restatement Date, if LGEC or any Prepayment Restricted Subsidiary shall at any time or from time to time make any Asset Sale or shall suffer an Event of Loss resulting in Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, Available Cash in excess of $15,000,000 60,000,000 in the aggregate for all such Asset Sales or Events of Loss in any Fiscal Yearfiscal year of LGEC, then promptly and in any event within five (5) Business Days of receipt by LGEC or the Restricted Subsidiary of the Net Available Cash of such Asset Sale or such Event of Loss, the Borrower shall apply prepay the Term Loans in an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) amount of all such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto Available Cash in excess of such threshold the amount specified above; provided that, in the case of each Asset Sale and Event of Loss, if LGEC or the applicable Restricted Subsidiary intends to invest or reinvest, as applicable, within twelve (collectively12) months of the later of the date of the applicable Asset Sale or receipt of Net Available Cash from an Event of Loss, the “Subject Proceeds”) to prepay Net Available Cash thereof in Additional Assets, or make capital expenditures that are used or useful in a Related Business or that replace the outstanding principal amount businesses, properties and/or assets that are the subject of Term Loans then subject to prepayment requirements such Asset Sale or Event of Loss (the “Subject LoansReinvested Deferred Amount”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is ), then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) Section in respect of the Subject Proceeds such Reinvested Deferred Amount to the extent (x) the Subject Proceeds are so such Reinvested Deferred Amount is actually invested or reinvested within 18 months following receipt thereofsuch twelve-month period, or (y) the Borrower LGEC or any of its a Restricted Subsidiaries Subsidiary has committed to so invest or reinvest the Subject Proceeds such Reinvested Deferred Amount during such 18 twelve-month period and the Subject Proceeds are such Reinvested Deferred Amount is so reinvested within 180 days after the expiration of such 18 twelve-month period (it being understood period; provided, however, that if the Subject Proceeds have any Reinvested Deferred Amount has not been so invested or reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with in the amount of Subject Proceeds such Reinvested Deferred Amount in excess of the amount specified above not so reinvested as set forth above in this clause (I)) (provided thatinvested or reinvested; provided, with respect to this clause (I)further, at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay prepay or offer to repurchase any other Indebtedness secured on a pari passu basis (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis basis) with the Obligations by pursuant to the terms of the documentation governing such other Indebtedness with such Net Available Cash (such Indebtedness (such other Indebtednessor Refinancing Indebtedness in respect thereof) required to be prepaid or offered to be so repurchased, the “Other Applicable Indebtedness”), then the relevant Person Borrower may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Term Loans and to the Prepayment repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)) at such time); it being understood provided that (1) the portion of the Subject Proceeds such Net Available Cash allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds such Net Available Cash required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds such Net Available Cash shall be allocated to the Subject Term Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.8(c)(ii) shall be reduced accordingly and (2) to the extent the holders accordingly. The amount of the Other Applicable Indebtedness decline to have each such Indebtedness Prepaid, the declined amount prepayment shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject outstanding Term Loans to the extent required of each Class pro rata, until paid in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)full.
(iii) In No later than the event fifth (5th) Business Day after the date on which financial statements with respect to each fiscal year of LGEC are required to be delivered pursuant to Section 6.1(b) (beginning with the first full fiscal year ended after the Restatement Date), the Borrower shall prepay the then outstanding Term B Loans by an amount equal to (A) 50% of Excess Cash Flow of LGEC and its Restricted Subsidiaries for the most recently completed fiscal year of LGEC; provided that the Borrower foregoing percentage shall be reduced to 25% when the Net First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant fiscal year is equal to or less than 4.50 to 1.00, and 0% when the Net First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant fiscal year is equal to or less than 4.00 to 1.00 minus (B) the principal amount of (1) any Term Loans and, to the extent pari passu with the Term Loans in right of payment and with respect to security, Incremental Term Loans, Incremental Equivalent Debt, Refinancing Term Loans and Refinancing Notes and (2) any Revolving Loans and Incremental Revolving Loans (in each case, to the extent accompanied by a permanent reduction of the relevant revolving commitment) voluntarily prepaid pursuant to paragraphs
(a) and (b) of this Section 2.8 or purchased by LGEC or any of its Restricted Subsidiaries receives Net Proceeds from in cash pursuant to Section 11.3 (with the issuance or incurrence amount of Indebtedness the deduction pursuant to this subclause (B) for Loans purchased pursuant to Section 11.3 being limited to the amount of cash paid by the Borrower LGEC or any of its Restricted Subsidiaries after in connection therewith) or voluntarily prepaid or purchased during such fiscal year; provided that no such voluntary prepayments or purchases shall reduce the Closing Date (other than Indebtedness that is permitted payments required to be incurred made under this Agreement including Section 6.01, except 2.8(c)(iii) to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion financed with long-term Indebtedness. The amount of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case such prepayment shall be applied to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and outstanding Term B Loans pro rata until paid in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with full. Any payment under this clause (viiii) belowshall be an “ECF Payment.”
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary after such Revolving Loans have been repaid in full, replace or cause to be cancelled (or provide an L/C Backstop or make other arrangements reasonably satisfactory to the Issuing Banks) outstanding Letters of Credit by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Notwithstanding anything in any provision under this Section 2.11(b2.8(c) to the contrary:
, (A) the Borrower shall not be required to prepay any amount amounts that would otherwise be required to be paid by the Borrower pursuant to Section 2.11(b)(ii2.8(c)(ii) above shall not be required to be so prepaid to the extent that the relevant Prepayment any such Asset Sale is consummated by a Subsidiary of LGEC or such Net Available Cash in respect of any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds Event of Loss are received by any Foreign Subsidiary, as the case may bea Subsidiary of LGEC, for so long as the repatriation to the Borrower United States, Canada or other relevant jurisdiction of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds amounts would be prohibited under any Applicable Law (including any such laws with respect to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the Organizational Documents governing such joint venture by any provision not entered into in contemplation fiduciary and statutory duties of the Closing Date or directors of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, Subsidiaries) and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distributionB) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower LGEC determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend repatriating of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii2.8(c)(ii) above would result in a tax liability that is material adverse Tax liability to the amount of funds otherwise required to be repatriated (taking into account including any withholding Taxtax) (the such amount attributable to such Foreign Subsidiaryin clauses (A) and (B), a “Restricted Asset Sale Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii2.8(c)(ii) above, as applicable, shall be reduced by the Restricted Asset Sale Amount until such time as it may repatriate such Restricted Asset Sale Amount without incurring such tax liability.
(vi) Notwithstanding any provision under this Section 2.8(c) to the contrary, for purposes of calculating the amount of the ECF Payment in Section 2.8(c)(iii), “Excess Cash Flow” will be deemed to be reduced by the amount of Excess Cash Flow generated by a Subsidiary of LGEC (A) that would be prohibited under any Applicable Law (including any such laws with respect to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of directors of the relevant Subsidiaries) from being repatriated to the United States, Canada or other relevant jurisdiction or (B) that LGEC determines in good faith would result in a tax liability that is material to the amount of funds otherwise required to be repatriated (including any withholding tax) if repatriated to the United States, Canada or other relevant jurisdiction (the amount of such Foreign Subsidiary Excess Cash Flow in clauses (A) and (B) without duplication, the “Restricted ECF Amount”); provided that such amounts in clause (A) shall only constitute a Restricted ECF Amount for so long as such repatriation to the extent that the repatriation (United States, Canada or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent availablejurisdiction is prohibited under Applicable Laws, and not previously applied pursuant to this in clause (C), B) shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) only constitute Restricted ECF Amount for so long as otherwise required abovesuch repatriation would result in such tax liability.
(vvii) At Notwithstanding the Borrower’s optionforegoing, any each Term B Lender may elect, by notice shall have the right to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of reject its applicable Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Loan Percentage of such any mandatory prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p2.8(c)(i) (other than Refinancing Indebtedness in respect of the Term Loans), (xii) Incremental and (iii) above (each such Lender, a “Rejecting Lender”); provided that any amount rejected by a Rejecting Lender shall be offered on a pro rata basis to the Term A Lenders, which they may elect to decline such prepayment, and thereafter any amounts so rejected may be retained by the Borrower.
(viii) Unless the Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(c) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of EurodollarTerm Benchmark Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(c) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans incurred or EurodollarTerm Benchmark Loans, accrued interest thereon to refinance all the date of prepayment together with any amounts due the Lenders under Section 3.6. Except as otherwise provided in Section 2.8(c)(i), Section 2.8(c)(ii) or a portion Section 2.8(c)(iii), mandatory prepayments of the Term Loans pursuant shall be applied to Section 2.22, (y) Replacement each Class of Term Loans incurred on a pro rata basis. All mandatory prepayments shall be applied to refinance all or any portion the installments of the Term Loans being repaid in accordance the direct order of maturity other than with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred respect to refinance all or a that portion of the Term Loans in accordance with the requirements of Section 6any installment held by a Rejecting Lender.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Upon the fifth Business Day following consummation of any --------------------- Asset Disposition or upon the receipt of Net Proceeds in respect by any Loan Party of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesLiquidating Distribution after the Closing Date, in each case, in excess case within 270 days after the Borrower or any of $15,000,000 in its Subsidiaries receives any Fiscal YearNet Sale Proceeds, the Borrower shall apply prepay the outstanding Loans in an amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) amount of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectivelySale Proceeds, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereofprovisions of Section 2.13; ------------ provided, and the amount of the prepayment of the Subject Loans however, that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Sale Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that which the Borrower or any such Subsidiary shall, within 270 days after receipt thereof, use to reinvest in the business of the Borrower of its Restricted Subsidiaries receives Subsidiaries, shall not be included in determining the aggregate Net Sale Proceeds from for such period; provided, further that, if an Event of Default shall have occurred and be continuing on the issuance or incurrence of Indebtedness date such Net Sale Proceeds are received by the Borrower or any of its Restricted Subsidiaries after or at any time during such applicable 270 day period, then the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to Borrower shall prepay the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term outstanding Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Sale proceeds (or, if any portion of such proceeds shall have been reinvested prior to the occurrence of such Event of Default, 100% of such remaining amount of Net Sale Proceeds not so reinvested) on the later of the date such Net Sale Proceeds are received by the Borrower or any of its Subsidiaries or the date of the occurrence of such Event of Default.
(b) On each date on which the Borrower or any of its Subsidiaries receives any Net Equity Proceeds, the Borrower shall prepay the outstanding Loans in an amount equal to (i) 50% of such Net Equity Proceeds if both (A) the Leverage Ratio as of the end of the fiscal quarter immediately preceding such date as to which financial statements are required to have been delivered pursuant to Section 6.1(a) and 6.1(b), as applicable, on a pro forma basis after ------------------------- giving effect to any prepayment made by the Borrower pursuant to clause (ii)(A) of this Section 2.12(b), is less than 2.0 to 1.0 and (B) no Default or Event of --------------- Default has occurred or is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Section 6.1(a), 6.1(b) or 6.1(e), as applicable and (ii) 75% of such -------------------------------- Net Equity Proceeds if either (A) the Leverage Ratio as of the end of the fiscal quarter immediately preceding such date as to which financial statements are required to have been delivered pursuant to Section 6.1(a) or 6.1(b), as ------------------------ applicable, is greater than or equal to 2.0 to 1.0 (but only until the Leverage Ratio is less than 2.0 to 1.0, at which time clause (i) of this Section 2.12(b) --------------- shall apply (unless clause (ii)(B) of this Section 2.12(b) shall then be --------------- applicable)) or (B) any Default or Event of Default has occurred and is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Section ------- 6.1(a), 6.1(b) or 6.1(e), as applicable, in each case in accordance with the ------- ------ ------ provisions of Section 2.13. ------------
(c) On each date on which the Borrower or any of its Subsidiaries receives any Net Debt Proceeds or becomes or remains liable with respect to Indebtedness with respect to Capitalized Leases in excess of $100,000,000 in the aggregate at any one time outstanding for the Borrower and its Subsidiaries, the Borrower shall prepay the outstanding Loans in an amount equal to 100% of such Net Debt Proceeds or 100% of the amount by which the aggregate amount of Indebtedness of the Borrower and its Subsidiaries with respect to Capitalized Leases exceeds $100,000,000 on such date, respectively, in accordance with the provisions of Section 2.13. ------------
(d) On each day on which the Total Revolving Loan Commitment is reduced pursuant to Section 2.10 the Borrower shall prepay the Revolving Loans ------------ to the extent, if any, that the outstanding principal amount of the relevant Class or Classes of Term Revolving Loans in accordance with clause (vi) belowexceeds such reduced Total Revolving Loan Commitment.
(ive) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay If at any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability time and for any officer, director, employee, manager, member reason the aggregate principal amount of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following Revolving Loans plus the event giving rise to L/C Obligations then outstanding are greater than the relevant Subject ProceedsTotal Revolving Loan Commitment, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if immediately prepay the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, Revolving Loans in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) excess. In addition, to the extent required herein (without regard to this clause (iv))),
(B) at any time and for any reason, the Total Revolving Loan Commitment minus the aggregate principal amount of Revolving Loans then outstanding, is less than the amount of L/C Obligations outstanding at such time, the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to Cash Collateralize the extent that the relevant Subject Proceeds are received by any joint venture, L/C Obligations in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds amount by which such L/C Obligations exceed the amount equal to the extent available, difference between the Total Revolving Loan Commitment and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment such aggregate principal amount of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveRevolving Loans.
(vf) At Nothing in this Section 2.12 shall be construed to constitute ------------ the Borrower’s optionLenders' consent to any transactions referred to in Sections 2.12(a), any Term Lender may elect, by notice to the Administrative Agent at ---------------- 2.12(b) or prior to the time and in the manner specified 2.12(c) above which transaction is not expressly permitted by the Administrative Agent, prior to any prepayment ------- ------- terms of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6this Agreement.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of the greater of $15,000,000 10,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall apply an amount equal (or cause to be applied) 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds of such Prepayment Asset Sale or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of of, and accrued interest on, the Initial Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that provided, that:
(A) so long as no Scheduled Wind-Down Period it is then understood that only the amount in effect and excess of the Borrower does not notify the Administrative Agent De Minimis Proceeds Threshold shall be required to be applied to make a prepayment in writing accordance with this Section 2.11(b)(ii);
(B) if prior to the date on which any such prepayment is required to be made that it does not intend made, the Borrower notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the applicable Subject Proceeds in the business of the Borrower and/or any Restricted Subsidiary (other than an investment in Cash or Cash Equivalents) (including), without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, then the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the applicable Subject Proceeds to the extent (x1) the applicable Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y2) the Borrower or any of its Restricted Subsidiaries Subsidiary has committed to so reinvest the applicable Subject Proceeds during such 18 month period and the applicable Subject Proceeds are so reinvested within 180 days six months after the expiration of such 18 month period or (3) the Borrower or any Restricted Subsidiary has committed to so reinvest the applicable Subject Proceeds during such 18 month period and such commitment is terminated and a new commitment is made within the six months after the expiration of such 18 month period and the application Proceeds are so reinvested within three months after the expiration of such 24 month period; it being understood that if the applicable Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of applicable Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)immediately preceding proviso); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months and
(a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (BC) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay repay or repurchase any other Indebtedness that is secured on a pari passu basis with First Lien Debt pursuant to the Obligations by terms of the documentation governing such other Indebtedness (such other IndebtednessIndebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten 10 Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this Section 2.11(b)(iiclause (C). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% ; it being understood and agreed that if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment is less than to any Term Lender or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate any holder of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Other Applicable Indebtedness.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement NotesDebt) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred in reliance on clause (b) of the definition of “Incremental Cap” to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap”, to refinance all or a portion of any Class of Term the Loans in accordance with the requirements of Section 6.01(z)the definition thereof, in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply (or cause to be applied) an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay (or cause to be prepaid) any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or any Domestic Subsidiary of any Foreign Subsidiary (any such Person, a “Specified Subsidiary”) or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Specified Subsidiary, as the case may be, for so long as the repatriation and/or other transfer to the Borrower of any such amount at the time such prepayment would otherwise be prohibited required to be made would be, in the good faith determination of the Borrower, prohibited, restricted or delayed under any Requirement of Law (including for the avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of Cash intra-group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the Borrower and/or any of its Restricted Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Foreign Specified Subsidiary’s directorsdirectors (or equivalent Persons), or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary Specified Subsidiary;
(it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, B) the Borrower shall take all commercially reasonable actions not be required by applicable Requirements of Law to permit such repatriationprepay (or cause to be prepaid) (it being understood any amount that if would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the repatriation of extent that the relevant Subject Proceeds is permitted under are received by any joint venture, in each case, for so long as the applicable Requirement of Law and, distribution and/or other transfer to the extent applicable, would no longer conflict with the fiduciary duties Borrower of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to would, in the repayment good faith determination of the applicable Term Loans pursuant Borrower, be prohibited at the time such prepayment would otherwise be required to this Section 2.11(bbe made under the Organizational Documents (or any relevant shareholders’ or similar agreement) to the extent required herein (without regard to this clause (iv))),governing such joint venture;
(BC) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint ventureForeign Subsidiary that is not a Loan Party, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the Borrower determines in good faith that the distribution to the Borrower of such Subject Proceeds would be prohibited at the time such prepayment would otherwise be required to be made under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans an agreement permitted pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), 6.05 by which such Foreign Subsidiary is bound governing any Indebtedness; and
(CD) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distributiondistribution or transfer) to the Borrower, directly or indirectly, from a Foreign Specified Subsidiary as a distribution or dividend (or other intercompany transfer) of any amounts amount required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would reasonably be expected to result in a material and adverse Tax liability (taking into account including any withholding Tax) being incurred by Holdings, the Borrower, any Parent Company and/or any Restricted Subsidiary (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w1) Refinancing Indebtedness (including Replacement NotesDebt) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x2) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y3) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), ) and/or (z4) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of the definition thereof. If any Lender fails to deliver a written notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vi) Except as otherwise contemplated by this Agreement or provided in, or intended with respect to, any Refinancing Amendment, any Incremental Facility Amendment, any Extension Amendment or any Replacement Debt (provided, that such Refinancing Amendment, Incremental Facility Amendment or Extension Amendment may not provide that the applicable Class of Term Loans receive a greater than pro rata portion of any prepayment of Term Loans pursuant to Section 62.11(b) than would otherwise be permitted by this Agreement), in each case effectuated or issued in a manner consistent with this Agreement, each prepayment of Term Loans pursuant to Section 2.11(b) shall be allocated to prepay any Class of Term Loans as directed by the Borrower or, in the absence of such direction, ratably to each Class of Term Loans then outstanding that is pari passu with the Initial Term Loans in right of payment and with respect to security (provided that any prepayment of Term Loans with the Net Proceeds of any Incremental Term Facility incurred in reliance on clause (b) of the definition of “Incremental Cap” to extend the Maturity Date of all or any portion of any Class of Term Loans pursuant to Section 2.22, Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap” to extend the Maturity Date of all or any portion of any Class of Term Loans and/or any Replacement Term Loan shall be applied to the applicable Class of Term Loans being extended, refinanced or replaced, as applicable). With respect to each relevant Class of Term Loans, any accepted prepayment under this Section 2.11(b) shall be applied against the remaining scheduled installments of principal due in respect of such Class of Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of the Term Loans of such Class in direct order of maturity), and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage of the applicable Class. If no Lender exercises the right to decline a prepayment of the Term Loans pursuant to Section 2.11(b)(v), the amount of such mandatory prepayment shall be applied first to the then outstanding Term Loans of the relevant Class that are ABR Loans to the full extent thereof and then to the then outstanding Term Loans of such Class that are LIBO Rate Loans in a manner that minimizes the amount of any payment required to be made by the Borrower pursuant to Section 2.16.
(vii) (A) In the event that on any Revaluation Date (after giving effect to the determination of the Outstanding Amount of each Revolving Loan, Swingline Loan and/or LC Obligation) the aggregate Revolving Credit Exposure of any Class exceeds the Total Revolving Credit Commitment of such Class then in effect, the Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure (in each case, taking the Dollar Equivalent of any amount denominated in an Alternate Currency), in an aggregate amount sufficient to reduce such aggregate Revolving Credit Exposure as of the date of such payment to an amount not to exceed 100% of the Revolving Credit Commitment of such Class then in effect by taking any of the following actions as it shall determine at its sole discretion: (I) prepayment of Revolving Loans and/or Swingline Loans in accordance with Section 2.11(a)(ii) and/or (II) with respect to any excess LC Exposure, provide Letter of Credit Support with respect thereto.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later Subject to Section 5 and Section 7, if, at any time, the Asset Coverage Ratio as stated on the most recent Valuation Statement is less than 200% or if a Responsible Officer of the fifth Business Day following Borrower becomes aware intra-month that the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearCoverage Ratio is less than 200%, the Borrower shall immediately apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vithe procedures set forth in Section 2(l) belowall of the Collections in the Custody Account or any Subsidiary Custody Account to repay the outstanding Loans until the Asset Coverage Ratio after such payments exceeds 215%; provided that (Ax) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify may retain no more than $250,000 in the Administrative Agent in writing prior to the date any such prepayment is required Custody Account and all Subsidiary Accounts, taken together, to be made that it does not intend to (I) reinvest (including to make capital expenditures) used exclusively for the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) payment of the Borrower or Borrower’s and any of its Restricted Subsidiaries, thenPermitted Subsidiary’s operating expenses and (y) for administrative convenience only, the Borrower shall not be required obligated to make a mandatory prepayment payments to the Lenders under this clause Section unless the aggregate amount of the payments being made on a given date exceeds $50,000. Any amounts paid in accordance with this Section 2(f)(i) shall be applied first, to reduce the outstanding Revolving Loans, and then, to reduce the Term Loans.
(ii) in respect Subject to Section 5 and Section 7, if at any time, the Modified Asset Coverage Ratio as stated on the most recent Valuation Statement or if a Responsible Officer of the Subject Proceeds Borrower becomes aware intra-month that the Modified Asset Coverage Ratio is less than 150%, the Borrower shall immediately apply in accordance with the procedures set forth in Section 2(l) all of the Collections in the Custody Account or any Subsidiary Custody Account to repay the extent outstanding Loans until the Modified Asset Coverage Ratio after such payments exceeds 165%; provided that (x) the Subject Proceeds are so reinvested within 18 months following receipt thereofBorrower may retain no more than $250,000 in the Custody Account and all Subsidiary Accounts, or taken together, to be used exclusively for the payment of the Borrower’s and any Permitted Subsidiary’s operating expenses and (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), thenfor administrative convenience only, the Borrower shall not be required obligated to make a mandatory prepayment payments to the Lenders under this clause (ii) in respect Section unless the aggregate amount of the Subject Proceeds payments being made on a given date exceeds $50,000. Any amounts paid in accordance with this Section 2(f)(ii) shall be applied first, to reduce the outstanding Revolving Loans, and then, to reduce the Term Loans.
(iii) The Borrower will give written notice to the extent the Subject Proceeds are so applied within 18 months following receipt thereof Agent at least thirty (it being understood that if the Subject Proceeds have not been so applied 30) days prior to the expiration occurrence of a Change of Control, which notice shall (A) state the applicable periodexpected effective date of such Change of Control, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied B) contain an offer to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or and all other Obligations hereunder in full as of the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness effective date of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any Change of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis Control in an amount equal to the prepayment sum of (x) the Subject Loans and to product of (1) 101%, times (2) the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and outstanding Loans, plus (y) all accrued but unpaid interest on the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the principal amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereofoutstanding Loans, and (C) set forth the remaining amount, if any, calculation of the Subject Proceeds shall be allocated to payment described under the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and preceding subclause (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(iiB). Notwithstanding the foregoing, except during any notice of a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date Change of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event Control may state that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from offer to repay the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with this Section 2(f)(iii) is conditioned upon the requirements 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 specified effective date) if such condition is not satisfied. Within ten (10) 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, to the extent necessary, provide the Borrower with the Agent’s calculation of the repayment amount due under this Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred 2(f)(iii), which calculations shall be conclusive absent manifest error. In the event the Lenders accept the Borrower’s offer to refinance all or a portion of any Class of Term repay the Loans in accordance with the requirements of this Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness2(f)(iii), the Borrower shall, promptly shall so repay the Loans and all other Obligations in full in accordance with the agreed upon (and in any event not later than five Business Days thereafter) calculations on the receipt thereof effective date of such Net Proceeds by Change of Control. In the Borrower or its applicable Restricted Subsidiary, apply an amount equal event the Lenders reject the Borrower’s offer to 100% of such Net Proceeds to prepay repay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) belowSection 2(f)(iii), 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.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the The Borrower shall not be required to prepay repay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiTemporary Revolving Loan within sixty (60) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveBorrowing Date.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Upon any Specified Asset Sale, the fifth Business Day following Borrowers shall ratably prepay the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andLoans, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesand if the Borrowing has not occurred the Commitments shall be subject to automatic ratable reduction, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the Net Cash Proceeds thereof, such prepayment to be effected within five Business Days after the consummation of such Specified Asset Sale; provided that no such prepayment shall be required or reduction shall occur until the Borrowers or their respective Subsidiaries have received such Net Cash Proceeds and provided further that, in the case of a Specified Asset Sale of the type specified in clause (x) of the definition thereof, no such prepayment shall be required or reduction shall occur until the amount of Net Cash Proceeds from all such Specified Assets Sales that have not previously been applied to prepay the outstanding principal Loans, or subjected the Commitments to automatic reduction, exceeds $300,000,000 in the aggregate, and then only the excess over $300,000,000 shall be used to prepay the Loans or subject the Commitments to automatic reduction.
(ii) Upon any Equity Issuance or Debt Incurrence, the Borrowers shall ratably prepay the Loans, and if the Borrowing has not occurred the Commitments shall be subject to automatic ratable reduction, in an aggregate amount equal to 100% of the relevant Class Net Cash Proceeds thereof, such prepayment to be effected within three Business Days after such Equity Issuance or Classes Debt Incurrence.
(iii) If any portion of Term the proceeds of the Loans (the “Unapplied Amount”) shall not be applied within ten days of the Funding Date to finance (i) the Acquisition, (ii) the purchase, repurchase, redemption, acquisition or other retirement or refinancing of any indebtedness, and/or payments in connection with hedging arrangements, of the Acquired Business and/or (iii) other transactions relating to any of the foregoing (including payment of fees and expenses in connection with any of the foregoing), the Borrowers shall ratably prepay the Loans in accordance with clause (vi) belowan aggregate amount equal to the Unapplied Amount, such prepayment to be effected on or before the Business Day on or immediately following the date that is ten days after the Funding Date.
(iv) Notwithstanding anything in If any prepayment of Loans required under this Section 2.11(b2.08(b) to would result in the contrary:
(ABorrowers incurring breakage costs under Section 8.04(d) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is Eurodollar Rate Loans having an Interest Period with a Restricted Subsidiaryduration of, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to existexpiring within, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary one month or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) less (the amount attributable to such Foreign Subsidiary, a “Restricted AmountAffected Loans”), at the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) request of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, Borrowers an amount equal to the Subject Proceeds aggregate principal amount of the Affected Loans, together with accrued interest thereon to the extent available, and not previously applied pursuant to this clause (C)date of deposit, shall be promptly deposited in an escrow account pursuant to arrangements reasonably satisfactory to the Borrowers and the Lenders and applied to the repayment prepayment of the applicable Term Affected Loans pursuant to Section 2.11(b) on the last day of the next-expiring Interest Period for the Affected Loans (or such earlier date or dates as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified shall be requested by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(bBorrowers), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, together with accrued interest on the “Declined Proceeds”Affected Loans at the rate provided for in Section 2.05(a)(ii), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Subject to the fifth Business Day following proviso below, upon the receipt of Net Proceeds in respect occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearCasualty Event, the Borrower shall apply make a mandatory prepayment of the Loans in an aggregate amount equal to the sum of (x) one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”%) of such the Net Proceeds or Net Insurance/Condemnation Cash Proceeds received with respect thereto in excess by the Borrower or any other Obligor as a result of such threshold Casualty Event, (collectively, y) the “Subject Proceeds”) to prepay applicable Prepayment Premium on the outstanding principal amount of Term the Loans then subject to prepayment requirements being prepaid and (z) any accrued but unpaid interest on such principal amount of the “Subject Loans”) in accordance with clause (vi) belowLoans being prepaid; provided that (A) so long as no Scheduled Wind-Down Period Default or Event of Default has occurred and is then in effect and continuing at the time the Borrower does not notify or any Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of any such Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent in writing prior a notice (each, a “Casualty Event Reinvestment Notice”) to the date any effect that the Borrower or applicable Subsidiary intends to apply the Net Cash Proceeds from such prepayment is required Casualty Event to be made that it does not intend acquire, replace or rebuild the property subject to (I) reinvest (including such Casualty Event or to make capital expenditures) the Subject Proceeds cost of purchase or construction of other assets useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject then such Net Cash Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration Casualty Event may be applied for such purpose in lieu of the applicable periodsuch mandatory prepayment, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided further that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Net Cash Proceeds have not been so applied prior to within one hundred eighty (180) days following the expiration occurrence of the applicable periodsuch Casualty Event, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (make a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the mandatory prepayment of the Subject Loans and in an aggregate amount equal to the Prepayment sum of (A) one hundred percent (100%) of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date unused balance of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Cash Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any other Obligor as a result of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p)such Casualty Event, (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with applicable Prepayment Premium on the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, prepaid and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to any accrued but unpaid interest on such principal amount of the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryLoans being prepaid, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrowerprovided, directly or indirectlyfurther, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise property subject to the relevant Subject ProceedsCasualty Event is Collateral, an amount equal to the Subject Proceeds to the extent availablethen any such acquired, and not previously applied pursuant to this clause (C)replaced, repaired, purchased or constructed property shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and Collateral in the manner specified by which the Administrative Agent, prior to any prepayment of Term Loans required to be made by for the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) benefit of the definition thereof; provided thatLenders, for has been granted a security interest under the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Security Documents.
Appears in 1 contract
Sources: Credit Agreement (CareDx, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearIf Indebtedness is incurred by Holdings, the US Borrower shall apply or any of its Restricted Subsidiaries (other than Indebtedness permitted under Section 6.2), then on the date of such issuance or incurrence, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied to the prepayment of the Term Loans (such percentage, together with accrued and unpaid interest thereon) as it may be reduced as described belowset forth in Section 2.14(e). The provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by Holdings, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the US Borrower or any of its Restricted Subsidiaries, then.
(b) If on any date Holdings, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the US Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject shall receive Net Cash Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, no later than five (5) Business Days after the expiration date of receipt by Holdings, the US Borrower or any of its Restricted Subsidiaries of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior Net Cash Proceeds, an amount equal to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the amount of such Net Cash Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the prepayment of the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or together with accrued and unpaid interest thereon) as set forth in Section 2.14(e); provided that (i) notwithstanding the case of any such proceeds relating foregoing, on each Reinvestment Prepayment Date an amount equal to a sale or other event the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon), (ii) the provisions of this Section 2.14 do not constitute a Restricted Subsidiary that is consent to the consummation of any Disposition not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights permitted by Section 6.5 and (Biii) if, if at the time that any such prepayment would be required hereunderrequired, the US Borrower or any of its Restricted Subsidiaries is required to, or required to Prepay any other offer to, repurchase or redeem or repay or prepay Permitted Term Loan Refinancing Indebtedness that is secured on a pari passu basis with the Obligations by pursuant to the terms of the documentation governing such other Indebtedness with proceeds of such Asset Sale or Recovery Event (such other IndebtednessPermitted Term Loan Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the relevant Person US Borrower may apply the Subject such Net Cash Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.14(b) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidindebtedness repurchased or repaid with such net proceeds, the declined amount of such net proceeds shall promptly (and in any event within ten five (5) Business Days after the date of such rejection) be applied to prepay the Subject Term Loans to the extent required in accordance with the terms of this Section 2.11(b)(iihereof (to the extent such net proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding). Notwithstanding the foregoing, except during a Scheduled Wind-Down Periodwith respect to any Foreign Asset Sale, the US Borrower may elect to reduce the amount of such prepayment by the amount of any Restricted Asset Sale Proceeds included in such Net Cash Proceeds; provided, that the US Borrower shall use its commercially reasonable efforts to repatriate any amounts constituting Restricted Asset Sale Proceeds pursuant to clause (xa) of the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to definition thereof as promptly as practicable following the date of such required prepayment is less than or prepayment. To the extent the US Borrower does not repatriate any such Restricted Asset Sale Proceeds, the US Borrower shall, to the extent applicable, prepay Term Loans and/or cause Indebtedness of the Foreign Subsidiary that generated the Restricted Asset Sale Proceeds to be permanently prepaid in an aggregate amount equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended corresponding Restricted Asset Sale Payment Amount on or prior to the first anniversary of the original prepayment date for the related Foreign Asset Sale.
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the US Borrower shall apply an amount equal to (i) the ECF Percentage of such required Excess Cash Flow minus (ii) the Optional Prepayment Amount (if any) for such Excess Cash Flow Period to the prepayment of the Term Loans (together with accrued interest thereon), as set forth in Section 2.14(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date on which the financial statements of the US Borrower referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is less than or to be made, are required to be delivered to the Lenders. Notwithstanding the foregoing, the US Borrower may elect to reduce the amount of such prepayment by an amount equal to 0.50 the ECF Percentage of Restricted ECF, if any, for such Excess Cash Flow; provided, that the US Borrower shall use its commercially reasonable efforts to 1.00 repatriate such applicable percentage of amounts constituting Restricted ECF pursuant to clause (b) of the definition thereof as promptly as practicable following the Excess Cash Flow Application Date (and greater than 0.25 upon any such repatriation, shall prepay the Term Loans by the amount thereof in accordance with this Section 2.14(c)). To the extent the US Borrower does not repatriate the applicable percentage of Restricted ECF, the US Borrower shall, to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect extent applicable, prepay Term Loans and/or cause Indebtedness of the applicable Foreign Subsidiary to such prepayment at a rate of 100.0%) and (z) be permanently prepaid in an aggregate amount equal to the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio corresponding Restricted ECF Payment Amount for the Test applicable Excess Cash Flow Period most recently ended on or prior to the first anniversary of the date that the original payment was required to have been made pursuant to the terms of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%this Section 2.14(c).
(iiid) In The US Borrower shall apply, on a dollar-for-dollar basis, all of the event that Net Cash Proceeds of any Replacement Term Loans and the Borrower or Net Cash Proceeds of any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Permitted Term Loan Refinancing Indebtedness (including Replacement Notes) that is incurred to refinance all or Term Loans) to the repayment of Term Loans to be repaid from such Net Cash Proceeds on the date such Net Cash Proceeds are received. Any such prepayment of Term Loans of a portion Class shall be paid ratably to the holders of such Class and shall be applied to the remaining scheduled amortization installments of the Term Loans of such Class in the order specified in Section 2.12(b)(ii).
(e) Amounts to be applied pursuant to this Section 2.14 shall be applied first to reduce outstanding ABR Loans of the applicable Class. Any amounts remaining after each such application shall be applied to prepay Eurocurrency Loans of such Class; provided, however, that if any Lenders exercise the right to waive a given mandatory prepayment of any Class of Term Loans pursuant to Section 6.01(p2.14(f), then such mandatory prepayment shall be applied on a pro rata basis to the then outstanding Term Loans of the accepting Lenders of such Class being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided, further, that the US Borrower may elect (except in the case of a prepayment pursuant to Section 2.14(d)) that the remainder of such prepayments not applied to prepay ABR Loans be deposited in a collateral account pledged to the Administrative Agent to secure the Obligations and applied thereafter to prepay the Eurocurrency Loans on the last day of the next expiring Interest Period for Eurocurrency Loans; provided that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurocurrency Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurocurrency Loan, and (B) Incremental Term Loans incurred (x) at any time while a Specified Default has occurred and is continuing, the Administrative Agent may, and (y) at any time while a Default or Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the Administrative Agent shall, apply any or all of such amounts to refinance all or the payment of Eurocurrency Loans. Notwithstanding anything to the contrary herein, if at any time a portion of any Class mandatory prepayment of Term Loans is required to be made pursuant to this Section 2.22, (C) Replacement 2.14 there are no Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with outstanding, the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof mandatory prepayment amounts shall be applied to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof outstanding Revolving Credit Borrowings; provided that no corresponding permanent reduction of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) belowRevolving Credit Commitments will be required.
(ivf) Notwithstanding anything in this Section 2.11(b) 2.14 to the contrary:
, any Term Loan Lender (A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, provided in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s optionPermitted Amendment, any other Term Lender Loan Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery or facsimile) at or least one (1) Business Day prior to the time and in the manner specified by the Administrative Agent, prior to any required prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b)date, to decline all (but not a portion) of any mandatory prepayment of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”)Term Loans pursuant to this Section 2.14, in which case such Declined Proceeds the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the Borrower and will be added to US Borrower.
(g) If for any reason, (i) the Available Amount as set forth in clause (a)(v) Total US Tranche Revolving Credit Exposure exceeds the sum of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness total US Tranche Revolving Credit Commitments then in effect (including Replacement Notes) incurred after giving effect to refinance all or a portion of any reduction in the Term Loans US Tranche Revolving Credit Commitments pursuant to Section 6.01(p2.10), the US Borrower shall immediately prepay US Tranche Revolving Credit Loans and/or cash collateralize the US Tranche Letters of Credit (xin accordance with Section 2.7(j)) Incremental Term Loans incurred in an aggregate amount equal to refinance all such excess or a portion (ii) the sum of the Term Loans Total Canadian Tranche Revolving Credit Exposure exceeds the sum of the total Canadian Tranche Revolving Credit Commitments then in effect (including after giving effect to any reduction in the Canadian Tranche Revolving Credit Commitments pursuant to Section 2.222.10), the applicable Borrower shall immediately prepay Canadian Tranche Revolving Credit Loans and/or cash collateralize the Canadian Tranche Letters of Credit (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c2.7(j), and/or (z) Incremental Equivalent Debt incurred in an aggregate amount equal to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6such excess.
Appears in 1 contract
Sources: Credit Agreement (Continental Building Products, Inc.)
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (ii) No later excluding any Indebtedness incurred in accordance with Section 7.2, other than the fifth Business Day following the receipt of Net Proceeds Permitted Refinancing Obligations in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Term Loans) shall be incurred by the Borrower shall apply or any Restricted Subsidiary, an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied not later than one Business Day after the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess toward the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements as set forth in Section 2.12(d).
(b) Unless the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and Required Prepayment Lenders shall otherwise agree, if on any date the Borrower does not notify or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in writing prior to respect thereof, such Net Cash Proceeds shall be applied not later than 10 Business Days after such date toward the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2014, but solely with respect to any fiscal year ending prior to the Ninth Amendment Effective Date, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans to the extent accompanied by permanent optional reductions of the Revolving Commitments, and all optional prepayments of Term Loans (x) during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) during the period during beginning with the day following the last day of such fiscal year and ending on the Excess Cash Flow Application Date and stated by the Borrower to be prepaid pursuant to this Section 2.12(c)(ii)(y), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the scheduled expiration of the Borrower’s existence financial statements referred to in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”Section 6.1(a), 100% of for the Net Proceeds of all ordinary course and non-ordinary course asset sales fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to repay the prepayment of the Term Loans or in accordance with Section 2.18(b) until paid in full. In connection with any Asset Financing Facility secured directly or indirectly mandatory prepayments by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required the Term Loans pursuant to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing this Section 2.12, such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or EurocurrencyTerm SOFR Loans and with respect to prepayments pursuant to Section 2.12(b) such Net Cash Proceeds may be applied, along with such prepayment of the Subject Term Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness PrepaidBorrower elects, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment or is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtednessthereof), the Borrower shallto purchase, promptly upon (and in redeem or repay any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted SubsidiaryPari Passu Debt, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) pursuant to the contrary:
(A) the Borrower shall agreements governing such other Indebtedness, on not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, more than a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely pro rata basis with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower such prepayments of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject ProceedsTerm Loans; it being understood provided that if no Lender exercises the relevant prohibition ceases right to exist, the relevant joint venture that is waive a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment given mandatory prepayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable 2.12(e), then, with respect to such Foreign Subsidiary, a “Restricted Amount”)mandatory prepayment, the amount that the Borrower of such mandatory prepayment shall be required applied first to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided Term Loans that are ABR Loans to the full extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise thereof before application to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At that are EurocurrencyTerm SOFR Loans in a manner that minimizes the Borrower’s option, amount of any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans payments required to be made by the Borrower pursuant to Section 2.11(b), 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to decline all (but not a portion) of its Applicable Percentage the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12 or 2.18, with respect to the amount of any mandatory prepayment pursuant to Section 2.12(b) or (c) that is allocated to Tranche B Term Loans (such declined amountsamount, the “Declined ProceedsTranche B Prepayment Amount”), in which case such Declined Proceeds may be retained by the Borrower and will be added will, in lieu of applying such amount to the Available Amount prepayment of Tranche B Term Loans as set forth provided in clause paragraph (a)(vd) of above, on the definition thereof; provided thatdate specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (which, for the avoidance of doubt, no includes each New Term Lender and ExtendedExtending Lender holding Tranche B Term Loans) a notice (each, a “Tranche B Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Tranche B Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche B Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche B Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Tranche B Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. Each Tranche B Term Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of its Tranche B Prepayment Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche B Term Lender’s receipt of the Tranche B Prepayment Option Notice (which notice shall specify the principal amount of the Tranche B Prepayment Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche B Amount”); provided that any Tranche B Term Lender’s failure to so reject such Tranche B Prepayment Amount shall be deemed an acceptance by such Tranche B Term Lender of such Tranche B Prepayment Option Notice and the amount to be prepaid in respect of Tranche B Term Loans held by such Tranche B Term Lender. On the Tranche B Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above. If there are (1) any Tranche A Term Loans then outstanding and (2) any Declined Tranche B Amounts in respect of a Tranche B Prepayment Option Notice, on the Business Day following the applicable Tranche B Mandatory Prepayment Date the Borrower shall give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche A Term Lender (which, for avoidance of doubt, includes each New Term Lender and ExtendedExtending Lender holding Tranche A Term Loans) a notice (each, a “Tranche A Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche A Term Lender a Tranche A Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche A Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche A Prepayment Option Notice, the Tranche A Term Loans of such Lender by an amount equal to the portion of the Declined Tranche B Amount indicated in such Lender’s Tranche A Prepayment Option Notice as being applicable to such Lender’s Tranche A Term Loans. Each Tranche A Term Lender may reject all or a portion of its Declined Tranche B Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche A Term Lender’s receipt of the Tranche A Prepayment Option Notice (which notice shall specify the principal amount of its Declined Tranche B Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche A Amount”); provided that any Tranche A Term Lender’s failure to so reject such Declined Tranche B Amount shall be deemed an acceptance by such Tranche A Term Lender of such Tranche A Prepayment Option Notice and the amount to be prepaid in respect of Tranche A Term Loans held by such Tranche A Term Lender. On the Tranche A Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche A Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche A Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above.
(f) If, on any date, the aggregate Revolving Extensions of Credit would exceed the aggregate Revolving Commitments (including as a result of any revaluation of the Dollar Equivalent of the L/C Obligations on any Revaluation Date in accordance with Section 1.4), the Borrower shall promptly prepay Revolving Loans in an aggregate principal amount equal to such excess and/or pay to the Administrative Agent an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the aggregate principal amount equal to such excess to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(g) Notwithstanding any other provision of this Section 2.12, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Tranche B Term Loans pursuant to Section 6.01(p2.12(a), (x) Incremental Term Loans incurred to refinance all or a exchange such Lender’s portion of the Tranche B Term Loan to be prepaid for Rollover Indebtedness, in lieu of such ▇▇▇▇▇▇’s pro rata portion of such prepayment (and any such Tranche B Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance so exchanged shall be deemed repaid for all or any portion of purposes under the Term Loans in accordance with the requirements of Section 9.02(cLoan Documents), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Sources: Credit Agreement (Booz Allen Hamilton Holding Corp)
Mandatory Prepayments. (ia) [Reserved]Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2, other than Permitted Refinancing Obligations in respect of Term Loans) shall be incurred by the Borrower or any Restricted Subsidiary, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied not later than one Business Day after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 2.12(d).
(iib) No later than Unless the fifth Business Day following Required Prepayment Lenders shall otherwise agree, if on any date the receipt of Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds in respect of from any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andRecovery Event then, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearunless the Borrower has elected to treat such Asset Sale or Recovery Event as a Reinvestment Event, the Borrower shall provide notice pursuant to Section 2.12(e) and shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds, determined as of the date such Net Proceeds are received (and for the avoidance of doubt, not recalculated on any Reinvestment Prepayment Date or Net Insurance/Condemnation Proceeds received Trigger Date), not later than 10 Business Days after such date, toward the prepayment of the Term Loans as set forth in Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect thereto in excess of such threshold to the relevant Reinvestment Event and (collectively, ii) on the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements date (the “Subject LoansTrigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in accordance with clause (viSection 2.12(d) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior by an amount equal to the date Applicable Asset Sale Prepayment Percentage of the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such prepayment is required to be made that it does not intend to Trigger Date.
(Ic) reinvest (including to make capital expenditures) Unless the Subject Proceeds in the business (other than Cash or Cash Equivalents) (includingRequired Tranche B Term Lenders shall otherwise agree, without limitationif, investments in CRE Finance Assets and Real Estate Investments) for any fiscal year of the Borrower or any of its Restricted Subsidiariescommencing with the fiscal year ending December 31, then2026, there shall be Excess Cash Flow, the Borrower shall not be required provide notice pursuant to make a mandatory prepayment under this clause Section 2.12(e) and, on the relevant Excess Cash Flow Application Date, apply an amount equal to (ii1) in respect the Excess Cash Flow Percentage of such Excess Cash Flow minus (2) the Subject Proceeds aggregate amount of all prepayments of Revolving Loans and New Revolving Loans to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration accompanied by permanent optional reductions of the applicable periodRevolving Commitments or New Revolving Commitments, the Borrower shall promptly prepay the Subject as applicable, and all optional prepayments of Term Loans, New Term Loans with the amount and Additional Obligations, in each case of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations Tranche B Term Loans, (x) during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) during the period beginning with the day following the last day of such fiscal year and ending on the Excess Cash Flow Application Date and stated by the documentation governing Borrower to be prepaid pursuant to this Section 2.12(c)(ii)(y), in each case other than to the extent any such other prepayment is funded with the proceeds of long-term Indebtedness (such other than revolving Indebtedness, “Other Applicable Indebtedness”), then toward the relevant Person may apply prepayment of the Subject Proceeds Tranche B Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 days after the date on which the financial statements 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.
(d) Amounts to be applied in connection with prepayments pursuant to clauses (a) and (b) of this Section 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full. Amounts to be applied in connection with prepayments pursuant to Section 2.12(c) shall be applied to the prepayment of the Tranche B Term Loans in accordance with Section 2.18(b) until paid in full. In connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.12, such prepayments shall be applied on a pro rata basis to the prepayment then-outstanding Term Loans (or, if pursuant to Section 2.12(c), the then-outstanding Tranche B Term Loans) being prepaid irrespective of the Subject whether such outstanding Term Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject are ABR Loans and the Other Applicable Indebtedness or Term Benchmark Loans (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject RFR Loans in accordance with the terms hereofSection 2.17) and with respect to prepayments pursuant to Section 2.12(b) such Net Cash Proceeds may be applied, and the amount of the along with such prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders Borrower elects, or is required by the terms thereof), to purchase, redeem or repay any Pari Passu Debt, pursuant to the agreements governing such other Indebtedness, on not more than a pro rata basis with respect to such prepayments of Term Loans; provided that, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Term Benchmark Loans (or RFR Loans in accordance with Section 2.17) in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Other Applicable Indebtedness Term Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) With respect to any mandatory prepayment of Term Loans pursuant to Sections 2.12(b) or (c), any applicable Lender, at its option (but solely to the extent the Borrower elects for this clause (e) to be applicable to a given prepayment), may elect not to accept such prepayment as provided below. To the extent commercially practicable, the Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under Sections 2.12(b) or (c) at least five Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is required to be made Sections 2.12(b) or (c) (the “Prepayment Amount”). The Administrative Agent will promptly notify each applicable Lender of the contents of any such prepayment notice so received from the Borrower, including the date on which such prepayment is to be made (the “Prepayment Date”). Any applicable Lender may (but solely to the extent the Borrower elects for this clause (e) to be applicable to a given prepayment) decline to have accept all (but not less than all) of its share of any such Indebtedness Prepaidprepayment (any such Lender, a “Declining Lender”) by providing written notice to the declined amount shall promptly (and in any event within ten Administrative Agent no later than three Business Days after the date of such rejectionapplicable ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. If any applicable Lender does not give a notice to the Administrative Agent on or prior to such third Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall be paid to the Administrative Agent by the Borrower and applied by the Administrative Agent ratably to prepay Term Loans under the Term Loan Tranches owing to applicable Lenders (other than Declining Lenders) be in the manner described in Section 2.12(d) for such prepayment. Any amounts that would otherwise have been applied to prepay the Subject Term Loans owing to the extent required Declining Lenders shall be applied in accordance with any applicable Intercreditor Agreement and any amounts not required to be applied shall be retained by the terms of Borrower (any Net Cash Proceeds retained by the Borrower in accordance with this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x2.12(e) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%constitute “Declined Proceeds”).
(iiif) In If, on any date, the event that aggregate Revolving Extensions of Credit would exceed the aggregate Revolving Commitments, the Borrower or any shall promptly prepay Revolving Loans and/or Swing Line Loans in an aggregate principal amount equal to such excess and/or pay to the Administrative Agent an amount of its Restricted Subsidiaries receives Net Proceeds from cash and/or Cash Equivalents equal to the issuance or incurrence aggregate principal amount equal to such excess to be held as security for all obligations of Indebtedness by the Borrower or any of its Restricted Subsidiaries after to the Closing Date (other than Indebtedness that is permitted Issuing Lenders hereunder in a cash collateral account to be incurred established by, and under the sole dominion and control of, the Administrative Agent.
(g) Notwithstanding any other provisions of this Agreement including Section 6.012.12, except to the extent that any or all of the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion Net Cash Proceeds of any Class of Term Loans pursuant to Section 6.01(p), Asset Sale by a Foreign Subsidiary (Ba “Foreign Asset Sale”) Incremental Term Loans incurred to refinance all or a portion the Net Cash Proceeds of any Class of Term Loans pursuant to Section 2.22, Recovery Event from a Foreign Subsidiary (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z“Foreign Recovery Event”), in each case giving rise to a prepayment event pursuant Section 2.12(b), or Excess Cash Flow generated by a Foreign Subsidiary (“Foreign Excess Cash Flow”) giving rise to a prepayment event pursuant to Section 2.12(c), are or is prohibited, restricted or delayed by applicable local law or the Organic Documents of a Subsidiary of the Borrower (provided that such prohibition or restriction in such organization document was not implemented for the purpose of avoiding a prepayment event) from being repatriated to the extent United States, (A) the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.12 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law or organization document will not permit repatriation to the United States (the Borrower hereby agrees to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the terms hereof or thereof applicable local law to prepay or offer to prepay permit such Indebtednessrepatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the Borrower shallapplicable local law or organization document, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit after such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be taxes payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) 2.12 to the extent required provided herein (without regard to this clause (iv))),
and (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines has determined in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) all of the relevant Subject Proceeds, directly Net Cash Proceeds of any Foreign Asset Sale or indirectly, from the relevant any Foreign Subsidiary Recovery Event or Foreign Excess Cash Flow would no longer have a material adverse tax consequence within the 365 day period following the event giving rise (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to the relevant Subject Proceeds, an amount equal to the Subject such Net Cash Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amountsExcess Cash Flow, the “Declined Proceeds”), in which case such Declined Net Cash Proceeds or Excess Cash Flow so affected may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6applicable Foreign Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Mandatory Prepayments. (ia) [Reserved]If any Indebtedness shall be incurred by the Company or any of its Restricted Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Term Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds of such incurrence.
(iib) No If on any date following the Closing Date the Company or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless the Company intends to acquire or repair assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries with all or any portion of the relevant Net Cash Proceeds, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Term Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds in respect of from any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during Recovery Event received in any Scheduled Wind-Down Period, Net Proceeds fiscal year of all ordinary course asset sales, in each case, the Company in excess of $15,000,000 in any Fiscal Year20,000,000 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date the Borrower Loans shall apply be prepaid by an amount equal to 100% the Reinvestment Prepayment Amount (such percentageor, as it may be reduced as in the case of a Reinvestment Prepayment Date described below, the “Net Proceeds Percentage”in clause (b) of such Net Proceeds or Net Insurance/Condemnation Proceeds received the definition thereof with respect thereto to only a portion of the relevant Reinvestment Deferred Amount, an amount equal to such portion) with respect to the relevant Reinvestment Event, provided however that Net Cash Proceeds from a Specified Disposition shall not be subject to any reinvestment rights and shall instead be applied in excess of such threshold (collectively, the “Subject Proceeds”) its entirety to prepay the Term Loans.
(c) Not later than five Business Days following a Specified Distribution, the Company shall prepay in full all outstanding principal amount of Term Loans then subject to prepayment requirements Loans.
(the “Subject Loans”d) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date If, for any such prepayment is required to Excess Cash Flow Period, there shall be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Excess Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted SubsidiariesFlow, then, on the Borrower relevant Excess Cash Flow Application Date, the Term B-23 Loans shall not be required prepaid by an amount equal to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or ECF Percentage of such Excess Cash Flow minus (y) the Borrower or any voluntary payments of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiaryincluding Incremental Term Loans) under Section 2.11, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness Credit Agreement Refinancing Debt that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness and Revolving Credit Loans (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during accompanied by a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(zpermanent commitment reduction), in each case during such fiscal year or following such fiscal year and prior to such Excess Cash Flow Application Date to the extent required by not previously deducted pursuant to this clause (y) in any prior period, but only to the terms hereof or thereof to prepay or offer to prepay extent that such prepayments are not made with the proceeds of long-term Indebtedness (other than revolving Indebtedness), the Borrower shall, promptly upon . Each such prepayment shall be made on a date (and in any event not an “Excess Cash Flow Application Date”) no later than five Business Days thereafterafter the earlier of the date on which the financial statements of the Company referred to in Section 6.01(a), for the fiscal year with respect to which such prepayment is made, (i) are required to be delivered to the Lenders and (ii) are actually delivered.
(e) In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the sum of (i) the receipt thereof aggregate Committed Credit Exposure of such Net Proceeds all the Revolving Credit Lenders plus (ii) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Borrower or its applicable Restricted SubsidiaryRevolving Credit Lenders plus (iii) the L/C Obligations then outstanding shall at any time exceed the Total Revolving Credit Commitment, apply then (A) on the last day of any Interest Period for any Eurocurrency Standby Borrowing and (B) on any other date in the event any Base Rate Borrowing shall be outstanding, the Borrowers shall prepay Standby Loans in an amount equal to 100% the lesser of (x) the amount necessary to eliminate such Net Proceeds to prepay excess and (y) the outstanding principal amount of the relevant Class applicable Borrowings referred to in subclauses (i) and (ii) above and, after the Revolving Credit Loans shall have been repaid or Classes prepaid in full, replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and each Issuing Lender with respect to) Letters of Term Credit issued by such Issuing Lender in an amount sufficient to eliminate such excess; provided, that in the case of any mandatory reduction of the Total Revolving Credit Commitments pursuant to Section 2.10(e), such prepayments of Revolving Credit Loans and replacement or cancellation of (or such making of other arrangements with respect to) Letters of Credit shall be completed simultaneous with the effectiveness of such mandatory reduction of the Revolving Credit Commitments. If, on any date, the sum of (1) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders and (2) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders shall exceed 105% of the Total Revolving Credit Commitments (less the L/C Commitment), then the Borrowers shall, not later than the third Business Day following the date notice of such excess is received from the Administrative Agent, prepay one or more Standby Borrowings in accordance with an aggregate principal amount sufficient to eliminate such excess. On the date of any termination or reduction of the Revolving Credit Commitments pursuant to this clause (vi) belowd), the Borrowers shall pay or prepay so much of the Standby Borrowings as shall be necessary in order that the Revolving Extensions of Credit will not exceed the Total Revolving Credit Commitments after giving effect to such termination or reduction.
(ivf) Notwithstanding anything to the contrary in this Section 2.11(bAgreement (including clauses (b) to the contrary:
and (Ad) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above above), to the extent that the relevant Prepayment Company has determined that (i) any of or all the Net Cash Proceeds of any Asset Sale is consummated (other than a Specified Disposition) or Recovery Event by any a Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds Excess Cash Flow attributable to Foreign Subsidiaries (or branches of Foreign Subsidiaries) are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with by applicable local law from being repatriated to the Company (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such Foreign Subsidiary’s directors, or result in, or repatriation would reasonably be expected to result in, present a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such the applicable Foreign Subsidiary or its directors or officers (it being agreed that, solely within 365 days following the event giving or gives rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil breach of fiduciary or criminal liability for the Persons described above, in either case, an amount equal to statutory duties by any director or officers) or (iii) such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable repatriation or reserved against as a result of repatriating such amounts) to the repayment any distribution of the applicable Term Loans pursuant to this Section 2.11(b) to relevant amounts would result in material adverse Tax consequences, the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to prepay any amount be applied to repay Loans at the times set forth in this Section 2.12 but may be retained by the applicable Foreign Subsidiary or branch (the Company hereby agreeing to cause the applicable Foreign Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law, risking the liability described in clause (ii) above, or incurring material adverse Tax consequences); provided, that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is for a Restricted Subsidiary, for so long as the distribution to the Borrower period of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of 180 days from receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Net Cash Proceeds, if such repatriation, and the once such repatriation of any of such affected Net Cash Proceeds becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, such distribution will be immediately affected and such distributed Subject Net Cash Proceeds will be promptly (and in any event not later than two ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the applicable Term Loans loans pursuant to this Section 2.11(b) to 2.12. For the extent required herein (avoidance of doubt, but without regard to limiting the Company’s obligations under this clause (iv))Section 2.12, and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by in no circumstance shall this Section 2.12 require any Foreign Subsidiary to make any dividend of or otherwise repatriate for the relevant benefit of the Company any portion of any Net Insurance/Condemnation Cash Proceeds are received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(g) All prepayments made pursuant to this Section 2.12 shall be subject to Section 2.21, if but shall otherwise be without premium or penalty, and shall be accompanied by accrued interest on the Borrower determines in good faith that principal amount to be repaid to but excluding the repatriation date of payment.
(h) Each prepayment of Term Loans made under clauses (a), (b) or other intercompany distribution(c) of this Section 2.12 shall be applied pro rata among each Class of Term Loans then outstanding and within each such Class to the Borrowerremaining principal repayment installments thereof as directed by the Company and, directly or indirectlyin the absence of such direction, from a Foreign Subsidiary as a distribution or dividend to the remaining principal repayment installments of any amounts required to mandatorily prepay the Term Loans pursuant to in direct order of maturity. Each prepayment of the outstanding Term B-23 Loans made under clause (d) of this Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower 2.12 shall be required applied pro rata to mandatorily prepay pursuant to Section 2.11(b)(ii) above, the remaining principal repayment installments thereof as applicable, shall be reduced directed by the Restricted Amount; provided that applicable Borrower and, in the absence of such direction, to the extent that the repatriation (or other intercompany distribution) remaining principal repayment installments of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment Term B-23 Loans in direct order of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovematurity.
(vi) At the Borrower’s option, any Term Lender may elect, by notice The Company shall deliver to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior 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. 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.
(j) With respect to any mandatory prepayments of the Term Loans under this Section 2.12 (other than Section 2.12(a), 2.12(b) (only with respect to a Specified Disposition) and 2.12(c)), each Term Loan Lender may reject all or a portion of its Term Loan Percentage, or other applicable share provided for under this Agreement, of such mandatory prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”)) by providing written notice (each, in which case a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 p.m., New York time, two Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Subject to the terms of this Agreement, any Declined Proceeds may remaining shall be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Company.
Appears in 1 contract
Sources: Credit Agreement (Harsco Corp)
Mandatory Prepayments. There shall become due and payable and Customer shall prepay the outstanding Obligations under this Loan Agreement in the following amounts (such amounts serving to permanently reduce the Maximum WCMA Line of Credit unless otherwise waived by MLBFS in writing) at the following times: (i) [Reserved].
upon the occurrence of an Event of Loss, any proceeds received as a result thereof shall be applied in accordance the provisions of Section 3.4(i) hereof, (ii) No later than the fifth Business Day following upon the receipt by any Credit Party of Net Proceeds in respect the proceeds from the issuance and sale of any Prepayment Asset Sale debt or Net Insurance/Condemnation Proceeds and, during equity securities or proceeds of the issuance of equity securities to Customer or any Scheduled Wind-Down Period, Net Proceeds wholly owned subsidiary (excluding the proceeds of all any stock options issued in the ordinary course asset salesof business exercised by employees of the Customer or any wholly owned subsidiary), in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments%) of the Borrower or Net Cash Proceeds of such issuance and sale, and (iii) upon receipt by any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect Credit Party of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect proceeds of any other prepayment required by this clause Asset Disposition, an amount equal to one hundred percent (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds100%) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Cash Proceeds of all ordinary course and non-ordinary course asset sales such Asset Disposition; provided, that no prepayment shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.4(iii) unless and until the aggregate Net Cash Proceeds received during any fiscal year from Asset Dispositions exceeds $250,000 (in which case all Net Cash Proceeds in excess of such amount shall be reduced accordingly used to make prepayments pursuant to this Section 2.4(iii)), and (2) to the extent the holders provided, that, so long as no Default or Event of the Other Applicable Indebtedness decline to have such Indebtedness PrepaidDefault has occurred and is continuing, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof recipient of such Net Cash Proceeds by may reinvest the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds within sixty (60) days, in replacement fixed assets of a kind then used or usable in the business of such Credit Party. If the applicable Credit Party does not intend to so reinvest such Net Cash Proceeds, or if the time period set forth in the immediately preceding sentence expires without such Credit Party having reinvested such Net Cash Proceeds, Borrower shall prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted Obligations under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, Loan Agreement in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Net Cash Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount.”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than Subject to the fifth Business Day following proviso below, and except to the receipt of extent such Net Cash Proceeds in respect have been used to prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearCasualty Event, the Borrower shall apply make a mandatory prepayment of the Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”%) of such the Net Proceeds or Net Insurance/Condemnation Cash Proceeds received with respect thereto in excess by the Borrower or any other Obligor as a result of such threshold Casualty Event up to the principal amount outstanding of the Term Loan, and (collectively, the “Subject Proceeds”y) to prepay the outstanding any accrued but unpaid interest on such principal amount of the Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowLoan being prepaid; provided that (A) so long as no Scheduled Wind-Down Period Default or Event of Default has occurred and is then in effect and continuing at the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of time the Borrower or any (b) Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of its Restricted Subsidiariesany such Casualty Event, then, a Responsible Officer of the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds may deliver to the extent Administrative Agent a notice (xeach, a “Casualty Event Reinvestment Notice”) to the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) effect that the Borrower or any applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of purchase or construction of other assets useful in the business of Parent or its Restricted Subsidiaries has committed to so reinvest the Subject Subsidiaries, then such Net Cash Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration Casualty Event may be applied for such purpose in lieu of the applicable periodsuch mandatory prepayment, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided further that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Net Cash Proceeds have not been so applied prior to within one hundred eighty (180) days following the expiration occurrence of the applicable periodsuch Casualty Event, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (make a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the mandatory prepayment of the Subject Loans and Term Loan in an aggregate amount equal to the Prepayment sum of (A) one hundred percent (100%) of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date unused balance of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Cash Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness received by the Borrower or any other Obligor as a result of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except such Casualty Event up to the extent principal amount outstanding of the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p)Loan, and (B) Incremental any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (CLoan) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay on such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryLoan being prepaid, as the case may beprovided, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directorsfurther, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise property subject to the relevant Subject ProceedsCasualty Event is Collateral, an amount equal to the Subject Proceeds to the extent availablethen any such acquired, and not previously applied pursuant to this clause (C)replaced, repaired, purchased or constructed property shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and Collateral in the manner specified by which the Administrative Agent, prior to any prepayment of Term Loans required to be made by for the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) benefit of the definition thereof; provided thatLenders, for has been granted a security interest under the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Security Documents.
Appears in 1 contract
Sources: Forbearance Agreement and First Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (i) [Reserved]No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrower shall prepay the outstanding principal amount of Initial Term Loans (including the 2020 Incremental Term Loans) and any Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) the aggregate principal amount of any Term Loans (including Additional Term Loans) and/or Revolving Loans (including Additional Revolving Loans or any revolving facility under this Agreement) prepaid pursuant to Section 2.11(a) prior to such date, (y) the aggregate principal amount of any loans under the Second Lien Facility (including any Additional Loans (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) prior to such date (to the extent the relevant voluntary prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent Debt, Replacement Notes, “Incremental Equivalent Debt” (as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and “Replacement Notes” (as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) prepaid, repurchased, redeemed or otherwise retired prior to such date and (z) (1) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) and/or (2) to the extent permitted by the terms of this Agreement, the amount of any reduction in the outstanding amount of any loans under the Second Lien Facility resulting from any assignment made in accordance with Section 9.05(g)(i) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (including in connection with any Dutch Auction (as defined in the Second Lien Credit Agreement)) made during such Fiscal Year or, at the option of the Borrower, prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash paid in connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans pursuant to Section 2.11(b)(ii), to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments and assignments, to the extent that such prepayments were not financed with the proceeds of long term funded Indebtedness (other than revolving Indebtedness (excluding any Revolving Loans))) of the Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b) shall be required unless and to the extent that the amount thereof exceeds $10,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary of the Borrower) is also required to prepay any Indebtedness that is secured on a pari passu basis with any Secured Obligation pursuant to the terms of, and to the extent required by, the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset salesProceeds, in each case, in excess of $15,000,000 30,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, of the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans (including the 2020 Incremental Term Loans) and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if prior to the date any such prepayment is required to be made that it does not intend made, the Borrower notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months 365 days following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month 365-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (365-day period; it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceedsimmediately preceding proviso) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay repay or repurchase any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Other Applicable Indebtedness (or offer to repurchase such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaidprepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)hereof.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance finance all or a portion of any Class of Term the Loans in accordance with the requirements of of
Section 6.01(z6.01 (z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds Proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil personal or criminal liability for the Persons described above, in either case, an amount equal within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to such the relevant Subject Proceeds Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceedsventure; it being understood that if the relevant prohibition ceases to existexist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above would result in a material and adverse Tax liability (taking into account including any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(iiSections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject ProceedsProceeds or Excess Cash Flow, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 365-day period following the event giving rise to the relevant Subject ProceedsProceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.;
(v) At the Borrower’s option, any Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds shall first be applied to any mandatory prepayment required under Section 2.11(b) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) and any mandatory prepayment required with respect to any “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes” (in each case, as defined under the Second Lien Credit Agreement or any equivalent term under any Second Lien Facility); provided that (A) in the event that any lender under the Second Lien Facility and any holder of such “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes” elects to decline receipt of such Declined Proceeds in accordance with the terms of the Second Lien Credit Agreement or the terms of the documentation governing such “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes,” as the case may be, the remaining amount thereof may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(vB) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.pr
Appears in 1 contract
Sources: First Lien Credit Agreement (Dragoneer Growth Opportunities Corp.)
Mandatory Prepayments. Subject to the terms of the Intercreditor Agreement,
(ia) [Reserved]Upon the occurrence of a Change of Control, the Borrowers shall make Full Payment of all Obligations.
(iib) No later than the fifth Business Day following the receipt of Net Proceeds in respect of When an Obligor or any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business Subsidiary thereof (other than Cash a Foreign Subsidiary) makes any Asset Disposition (other than a disposition described under clause (a), (b), (c), (d), (e), (f) or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investmentsg) of the Borrower definition of “Permitted Asset Disposition” hereof) or experiences any of its Restricted Subsidiaries, thenAsset Loss Event, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the Net Cash Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds to prepay shall be held in trust for Collateral Agent; provided. however, that the outstanding principal amount Net Cash Proceeds of the relevant Class foregoing received since the Closing Date shall not be required to be applied to the prepayment of the Loans to the extent such proceeds are to be reinvested in or Classes otherwise used to replace, repair or restore the properties or assets used in such Obligor’s or such Subsidiary’s, as applicable, business and so long as: (i) no Default or Event of Term Loans Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (ii) Borrower Representative delivers a certificate to Collateral 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 (or committed to be used) to reinvest in new assets useful in the business, or otherwise replace, repair or restore any such properties or assets to be used in such Obligor’s or such Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 270 days (or such longer period as Collateral Agent may agree, but not to exceed 360 days without the Required Lenders’ consent) 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 any plans for such replacement, repair or restoration, which shall be acceptable to Collateral Agent in its Permitted Discretion) and (iii) such Net Cash Proceeds are deposited in a non-interest bearing account subject to the dominion and control of Collateral Agent (or, so long as the Revolver Agreement is in effect, the Revolving Credit Agent, acting as agent for Collateral Agent) which proceeds shall then be disbursed by Collateral Agent to such Obligor or such Subsidiary promptly upon Borrower Representative’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 Collateral Agent in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
ii); provided, further, that (A) if all or any portion of such Net Cash Proceeds not so applied to the Borrower shall prepayment of the Loans are not be required to prepay any amount that would otherwise be required used (or committed to be paid pursuant used) in accordance with the foregoing proviso within 270 days (or such longer period as Collateral Agent may agree, but not to Section 2.11(b)(iiexceed 360 days without the Required Lenders’ consent) above of receipt of such Net Cash Proceeds, such amount shall be applied to the extent that Loans as otherwise set forth herein, on the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary last day of such specified period, (B) if such Obligor or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign such Subsidiary, as the case may be, for is not permitted to reinvest or utilize such Net Cash Proceeds in accordance with this Section 2.1.6(b) as a result of the existence of a Default, Borrower Representative may request, and upon the written approval of Collateral Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to the dominion and control of Collateral Agent (or, so long as the repatriation to Revolver Agreement is in effect, the Borrower Revolving Credit Agent, acting as agent for Collateral Agent) until the earlier of any (x) the date on which such amount would be prohibited Default is cured or delayed under any Requirement of Law or conflict waived in writing in accordance with the fiduciary duties terms of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”)Agreement, in which case such Declined Proceeds amounts may be retained by the Borrower and will be added to the Available Amount as set forth reinvested or utilized in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made accordance with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, proviso above and (y) Replacement Term Loans incurred the date on which an Event of Default shall occur, in which case such Net Cash Proceeds shall be applied to refinance all or any portion of the Term Loans in accordance with Section 5.4.1 on such date and (C) if such Obligor or such Subsidiary, as the requirements case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of Section 9.02(c)a continuing Event of Default, and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans such Net Cash Proceeds shall be applied in accordance with Section 5.4.1. The foregoing shall not be deemed to be implied consent to any Asset Disposition or other event otherwise prohibited by the requirements terms and conditions hereof.
(c) Upon the sale or issuance of any of the Equity Interests (other than Excluded Issuances) of Ultimate Parent or any of its Subsidiaries, Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds of such sale or issuance, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds shall be held in trust for Collateral Agent.
(d) Upon the sale, issuance or incurrence of any Debt of any Obligor or any of its Subsidiaries (other than Debt permitted under Section 69.2.1), Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds of such sale, issuance or incurrence, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Collateral Agent. The foregoing shall not be deemed to be implied consent to any such sale, issuance or incurrence otherwise prohibited by the terms and conditions hereof.
(e) When any Obligor or any Subsidiary (other than a Foreign Subsidiary) thereof receives any Extraordinary Receipts, Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds thereof, such repayment to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds. The foregoing shall not be deemed to be implied consent to any event or condition giving rise to any Extraordinary Receipts which would otherwise constitute a Default or Event of Default under this Agreement.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved]Following the Signing Date, no later than the first Business Day following the date of receipt by Thomson or its Subsidiaries (and, as of and from the Effective Date, the DLC Entities) of any Net Asset Sale Proceeds, the Borrowers shall prepay the Loans and permanently reduce the Commitments in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that for greater certainty if a Thomson Learning Disposition occurs before the Effective Date, £2,300,000,000 of the Net Asset Sale Proceeds thereof shall be (to the extent not otherwise required to prepay Loans and reduce Commitments in accordance with Sections 2.06(c)(ii) and 2.19) invested in Permitted Investments; provided, further, that the Net Asset Sale Proceeds of a Thomson Learning Disposition will be used within one Business Day of the earlier of (x) the Effective Date and (y) the Revolving Termination Date to prepay Loans and permanently reduce the Commitments until the total aggregate amount of the then outstanding Loans and Commitments shall not exceed £2,500,000,000. Any payments made and Commitments permanently reduced under this Section 2.06(b)(i) shall be applied first to Base Rate Loans until paid in full, and second to LIBOR Rate Loans in direct order of Interest Period maturities until paid in full, pro rata among all Lenders holding same.
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Reserved.
(iii) In the event that the Borrower Within one Business Day of receipt by Thomson or any its Subsidiaries (and, as of its Restricted Subsidiaries receives Net Proceeds and from the issuance or Effective Date, the DLC Entities) of any cash proceeds from the incurrence of any Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than with respect to Indebtedness that is permitted to be incurred under this Agreement including Section 6.01the Loan Documents, except to the extent Bilateral Agreements or the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all refinancing or a portion replacement thereof, or the refinancing or replacement of any Class Indebtedness permitted under clause (3) of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion the definition of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Permitted Indebtedness), the Borrower shall, promptly upon (shall prepay the Loans and permanently reduce the Commitments in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an aggregate amount equal to 100% of such Net Proceeds proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses. Any payments made and Commitments permanently reduced under this Section 2.06(b)(iii) shall be applied first to prepay the outstanding principal amount of the relevant Class or Classes of Term Base Rate Loans until paid in full, and second to LIBOR Rate Loans in accordance with clause (vi) belowdirect order of Interest Period maturities until paid in full, pro rata among all Lenders holding same.
(iv) Notwithstanding anything in this Section 2.11(b) to If at any time the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under Non-Canadian Lender Extensions of Credit exceed the applicable Requirement Commitments of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against Non-Canadian Lenders other than solely as a result of repatriating currency fluctuations, the Borrowers shall immediately make a principal payment to the Non-Canadian Administrative Agent for the ratable accounts of the Non-Canadian Lenders in an amount necessary together with (x) accrued interest to the date of such amountsprepayment on the principal amount repaid or prepaid and (y) in the case of prepayments of LIBOR Rate Loans, any amount payable to the Non-Canadian Lenders pursuant to Section 9.07(b), so that the Non-Canadian Lender Extensions of Credit do not exceed the Commitments of the Non-Canadian Lenders. Any payments made under this Section 2.06(b)(iv) shall be applied first to Base Rate Loans until paid in full, and second to LIBOR Rate Loans in direct order of Interest Period maturities until paid in full.
(v) If, at any time, the amount of the Non-Canadian Lender Extensions of Credit exceeds the Commitments of Non-Canadian Lenders (any such excess being referred to in this Section as a “Non-Canadian Lender Excess Amount”) solely as a result of currency fluctuations, then the Borrowers will repay (as provided for in the next following sentences) to the repayment Non-Canadian Administrative Agent, for the ratable accounts of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject ProceedsNon-Canadian Lenders, an amount equal to the Subject Proceeds Non-Canadian Lender Excess Amount. If the amount of any Non-Canadian Lender Excess Amount is equal to or greater than 3% of the extent availableNon-Canadian Commitments, and not previously applied pursuant to this clause (C), shall be promptly applied to then the repayment of the applicable Term Loans pursuant Non-Canadian Lender Excess Amount to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term each affected Non-Canadian Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to shall be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) Borrowers within 1 Business Day after the Non-Canadian Lender Excess Amount exceeds such threshold. If the amount of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available any Non-Canadian Lender Excess Amount as set forth in clause (a)(v) is less than 3% of the definition thereof; provided thatNon-Canadian Commitments, for then the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion repayment of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion Non-Canadian Lender Excess Amount shall be made on earlier of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion next fiscal quarter end of Thomson and the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or next date on which a portion of the Term Loans in accordance with the requirements of Section 6new Interest Period commences.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Thomson Corp /Can/)
Mandatory Prepayments. (a) In each Fiscal Year:
(i) [Reserved].the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Permitted Prepayment Asset Sale Proceeds to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period until such time that the amount of Shared Proceeds paid to the Mandatory Prepayment Indebtedness pursuant to this Section 2.05 exceeds US$50,000,000 (or the US Dollar equivalent thereof) in such Fiscal Year; and
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of if, at any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, time during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any such Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Shared Proceeds received with respect thereto in excess of such threshold Fiscal Year by the Company and its Subsidaries and paid to the Mandatory Prepayment Indebtedness pursuant to this Section 2.05 exceeds US$50,000,000 (collectively, or the “Subject Proceeds”US Dollar equivalent thereof) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowShared Proceeds Trigger” for such Fiscal Year), then after the Shared Proceeds Trigger and until the last day of such Fiscal Year, the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Permitted Prepayment Asset Sale Proceeds of any Permitted Prepayment Asset Sales received by the Company after such Shared Proceeds Trigger to the Other Prepayment Indebtedness within the applicable Required Payment Period; provided that that, notwithstanding the foregoing, if and for so long as any “Default” or “Event of Default” is continuing under, and as defined in, the Major Derivative Counterparty Loan or the BBVA Loan, the Company shall and shall cause each of its Subsidiaries to prepay 100% of the Net Cash Proceeds of any Pledged Entity Asset Sales to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period; provided that, in the case of clauses (Ai) and (ii) above, if and for so long as no Scheduled Wind-Down Period Default or Event of Default is then in effect continuing hereunder and the Borrower does not notify Company has delivered a Reinvestment Certificate within the Administrative Agent in writing prior applicable Required Payment Period for such Permitted Prepayment Asset Sale, up to 50% of the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Shared Permitted Prepayment Asset Sale Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) the Disposition of any of the Borrower or Banorte Shares) may be used for Investments in long-term productive assets used in the Company’s Core Business during the Reinvestment Period for such Permitted Prepayment Asset Sale; provided, further, that any such amount of its Restricted Subsidiaries, then, Shared Permitted Prepayment Asset Sale Proceeds used for Investments in long-term productive assets used in the Borrower Company’s Core Business shall not be required to make a mandatory prepayment under this clause counted against the thresholds in clauses (i) and (ii) in respect above; provided, further, that if all or any portion of such Shared Permitted Prepayment Asset Sale Proceeds is not ultimately applied to such Investments within the Subject Proceeds Reinvestment Period pursuant to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereofpreceding proviso, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration remaining portion of such 18 month period (it being understood that if Shared Permitted Prepayment Asset Sale Proceeds shall be applied to prepay the Subject Proceeds have not been so reinvested prior Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above thresholds in this clause clauses (I)i) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of above, on the Subject Proceeds Required Repayment Date. Notwithstanding anything herein to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”)contrary, 100% of the Net Cash Proceeds of all ordinary course and non-ordinary course asset sales any Disposition of any of the Banorte Shares shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the Prepayment thresholds in clauses (i) and (ii) above, within the applicable Required Payment Period, and none of the Other Applicable Indebtedness (determined on Net Cash Proceeds thereof may be used for Investments in long-term productive assets in the basis Company’s Core Business or any purpose other than prepayment of the Mandatory Prepayment Indebtedness or Other Prepayment Indebtedness, as applicable.
(b) In each Fiscal Year:
(i) the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of Shared Casualty Event Proceeds to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period until such time that the amount of Shared Proceeds received by the Company and its Subsidiaries exceeds US$50,000,000 (or the US Dollar equivalent thereof) in such Fiscal Year; and
(ii) if, at any time during such Fiscal Year, a Shared Proceeds Trigger occurs, then after such Shared Proceeds Trigger and until the last day of such Fiscal Year, the Company shall, and shall cause each of its Subsidiaries to, prepay 100% of such Shared Casualty Event Proceeds received by the Company after such Shared Proceeds Trigger to the Other Prepayment Indebtedness within the applicable Required Payment Period; provided that, notwithstanding the foregoing, if and for so long as any “Default” or “Event of Default” is continuing under, and as defined in, the Major Derivative Counterparty Loan or the BBVA Loan, the Company shall and shall cause each of its Subsidiaries to prepay 100% of the Net Cash Proceeds of any Pledged Entity Casualty Event to the Mandatory Prepayment Indebtedness within the applicable Required Payment Period; provided that, if and for so long as no Default or Event of Default is continuing hereunder, and (i) the Shared Casualty Events Proceeds of any Casualty Event do not exceed (A) US$10,000,000 (or the US Dollar Equivalent thereof) without the written consent of the holders of more than 50% of the then aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness Major Derivative Counterparty Loan (such consent not to be subject to a fee or to be unreasonably withheld) or (B) US$55,000,000 (or accreted amount if such Other Applicable Indebtedness is issued with original issue discountthe US Dollar Equivalent thereof) at such time); it being understood that in any event and (1ii) the portion Company has (A) filed a claim in respect of such Casualty Event within five (5) Business Days thereof and (B) delivered a Casualty Certificate within ten (10) Business Days following the filing of such claim, all (but no more than US$10,000,000 (or the US Dollar Equivalent thereof) without the written consent of the Subject Proceeds allocated to holders of more than 50% of the Other Applicable Indebtedness shall not exceed the then aggregate outstanding principal amount of the Subject Major Derivative Counteryparty Loan or US$55,000,000 (or the US Dollar Equivalent thereof) in any event) of such Shared Casualty Events Proceeds required from such Casualty Event may be used to Restore any such affected Properties during the Reinvestment Period; provided, further, that any such amount of Shared Casualty Events Proceeds from such Casualty Event used to Restore any such affected Properties shall not be allocated counted against the thresholds in clauses (i) and (ii) above; provided, further, that if all or any portion of such Shared Casualty Events Proceeds from such Casualty Event is not ultimately applied to Restore any affected Properties within the Other Applicable Indebtedness Reinvestment Period pursuant to the terms thereofpreceding proviso, and the any remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date portion of such rejection) Shared Casualty Events Proceeds from such Casualty Event shall be applied to prepay the Subject Loans Mandatory Prepayment Indebtedness or the Other Prepayment Indebtedness, as applicable pursuant to the extent required thresholds in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, clauses (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%i) and (zii) above, on the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Required Repayment Date.
(iiic) In The Company shall, and shall cause each of its Subsidiaries to, apply 100% of the event that Net Cash Proceeds of the Borrower issuance of any Indebtedness of the Company or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than the issuance of Indebtedness that is permitted to be incurred under this Agreement including by Section 6.01, except to the extent the relevant Indebtedness constitutes 7.16 (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion Limitations on Incurrence of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Additional Indebtedness), ) to prepayment of the Borrower shall, promptly upon Other Prepayment Indebtedness within five (and in any event not later than five 5) Business Days thereafter) following the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) belowthereof.
(ivd) Notwithstanding anything in this Section 2.11(b) to If the contrary:
(A) the Borrower shall not be required to prepay Company incurs any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely Permitted Refinancing Indebtedness with respect to any joint venture that is a Restricted SubsidiaryOther Prepayment Indebtedness (including any partial Refinancings thereof), for so long as and such Permitted Refinancing Indebtedness consists of:
(i) Permitted Refinancing Indebtedness raised in the distribution debt capital markets, the Company shall apply 100% of the Net Cash Proceeds of such Permitted Refinancing Indebtedness to prepayment of Other Prepayment Indebtedness within five (5) Business Days following the receipt thereof; or
(ii) any other Permitted Refinancing Indebtedness, the Company shall apply 100% of the Net Cash Proceeds of such Permitted Refinancing Indebtedness to the Borrower prepayment of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly Mandatory Prepayment Indebtedness within five (and in any event not later than two 5) Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovereceipt thereof.
(ve) At the Borrower’s option, any Term Lender may elect, by notice Any mandatory prepayment of Other Prepayment Indebtedness shall be made on a pro rata basis according to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any Other Prepayment Pro Rata Amounts for such Other Prepayment Indebtedness.
(f) Any mandatory prepayment of Term the Loans required shall be paid in US Dollars and applied to be made by the Borrower pursuant all Minor Derivative Counterparty Loans on a pro rata basis according to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.each Minor Derivative Counterparty’s Pro Rata Share
Appears in 1 contract
Sources: Loan Agreement (Gruma Sab De Cv)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than Unless the fifth Business Day following Required Prepayment Lenders shall otherwise agree, if on any date the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunderParent, the Borrower or any of its Class I Restricted Subsidiaries is required to Prepay shall incur any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”excluding any Indebtedness incurred in accordance with Section 7.2), then an amount equal to 100% of the relevant Person may apply Net Cash Proceeds thereof shall be applied on the Subject Proceeds on a pro rata basis to date of such issuance or incurrence toward the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such timeas set forth in Section 2.10(c); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms . The provisions of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during do not constitute a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior consent to the date incurrence of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with any Indebtedness by the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%)Parent, (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Subsidiaries not permitted by Section 7.2.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if the Borrower or any of its Class I Restricted Subsidiaries receives shall receive Net Cash Proceeds from the issuance any Asset Sale or incurrence any Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof not later than 10 Business Days after such date of Indebtedness receipt by the Borrower or any of its Class I Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds Cash Proceeds, the Loans shall be prepaid by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% the amount of such Net Cash Proceeds (excluding any amounts subject to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiarysuch Reinvestment Notice), as the case may beset forth in Section 2.10(c); provided, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following notwithstanding the event giving rise to foregoing, on each Reinvestment Prepayment Date the relevant Subject Proceeds, the Borrower Loans shall take all commercially reasonable actions required be prepaid by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) the Reinvestment Prepayment Amount with respect to the repayment relevant Reinvestment Event, as set forth in Section 2.10(c). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) Amounts to be applied as prepayments pursuant to this Section shall be applied, first, to the prepayment of the applicable Term Loans and second, to the prepayment of the Revolving Credit Loans and as specified in Section 2.16. Any such mandatory prepayment of the Revolving Credit Loans pursuant to this Section 2.10 shall not result in a mandatory reduction of the Revolving Credit Commitments. Amounts prepaid in respect of Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall 2.10 may not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required abovereborrowed.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Mandatory Prepayments. (i) [Reservedreserved].
(ii) No later than the fifth (5th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and(in each case, during any Scheduled Wind-Down Period, excluding Net Proceeds of all ordinary course asset salesattributable to (x) the Performance Chemicals Sale or (y) ABL Priority Collateral), in each case, in excess of $15,000,000 40,000,000 in the aggregate in any Fiscal YearYear (in each case, the amount of such excess, the “Subject Proceeds”; provided that, any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds the Net Proceeds of which are less than $30,000,000 with respect to any single event or transaction (or series of related events or transactions) shall not be subject to this Section 2.11(b)(ii)), the Parent Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Asset Sale Prepayment Percentage of such Net Subject Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Subject Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided provided, that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing if, prior to the date any such prepayment is required to be made that it does not intend made, the Parent Borrower notifies the Administrative Agent of its intention to (I) reinvest (including to make capital expenditures) the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Parent Borrower or any of its Restricted Subsidiariessubsidiaries, thenthen so long as no Event of Default then exists, the Parent Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (xA) the Subject Proceeds are so reinvested within 18 fifteen (15) months following receipt thereof, thereof or (yB) the Parent Borrower or any of its Restricted Subsidiaries subsidiaries has committed to so reinvest the Subject Proceeds during such 18 15-month period and the Subject Proceeds are so reinvested within 180 days six (6) months after the expiration of such 18 15-month period (it being understood period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Parent Borrower shall promptly prepay the outstanding principal amount of Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice without regard to the Administrative Agentimmediately preceding proviso); provided, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii))further, but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any that (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Parent Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) any other Indebtedness that is secured on a pari passu basis with the First Priority Secured Obligations by pursuant to the terms of the documentation governing such other Indebtedness (such other IndebtednessIndebtedness required to be so Prepaid, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment Prepay of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time)); it being understood provided, further, that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Term Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii)hereof. Notwithstanding anything to the foregoingcontrary herein or in any other Loan Document, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage of any Disposition of any ABL Collateral shall not be 50.0% if the Total Debt required to Equity Ratio for the Test Period most recently ended prior be applied to the date prepayment of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Initial Term Loans hereunder.
(iii) In the event that the a Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the such Borrower or any of its Restricted Subsidiaries after the Closing Date (other than with respect to Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) Term Loans, Replacement Revolving Facility or Replacement Notes incurred to refinance all or a portion of any Class or Classes of Term Loans pursuant to Section 6.01(p), (Bas determined by such Borrower) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c)), or (B) and/or (D) Incremental Loans or Incremental Equivalent Debt incurred to refinance all or a portion of any Class or Classes of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such IndebtednessTerm Loans and such Incremental Loans or Incremental Equivalent Debt do not constitute utilization of the Incremental Cap pursuant to Section 2.22), the such Borrower shall, promptly upon (and in any event not later than five the next succeeding Business Days thereafterDay) the receipt thereof of such Net Proceeds by the such Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:,
(A) the Borrower Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower Borrowers of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would could reasonably be expected to result in, a material risk of personal, civil personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely during the period within 365 days one (1) year following the event giving rise date such prepayments are required to the relevant Subject Proceedsbe made, the Borrower Borrowers shall, and shall cause the applicable Foreign Subsidiary to, promptly use commercially reasonable efforts to take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that and if after taking such actions, the repatriation of the relevant affected Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or could reasonably be reasonably expected to result in, a material risk of personal, civil personal or criminal liability for the Persons described aboveabove within one (1) year following the date such prepayments are required to be made, in either case, an amount equal to such the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds and the repatriated Subject Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amountsthereof) to the repayment of the applicable Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iviv)(A))),) or the Parent Borrower or another subsidiary may, at its option, apply to such repayment an equivalent amount with the Foreign Subsidiary not repatriating the actual Subject Proceeds; and
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Parent Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend Borrower of any amounts required to mandatorily prepay the Initial Term Loans and other Term Loans pursuant to Section 2.11(b)(ii) above would result in any Parent Company, Holdings, a Borrower or any Restricted Subsidiary incurring material Tax liabilities (including any material withholding Tax) or material adverse Tax liability consequences (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiaryamount, a “Restricted Amount”), as reasonably determined by the Parent Borrower, the amount that the a Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted AmountAmount until such time as the Restricted Amount may be repatriated (or otherwise distributed) to a Borrower without the incurrence of such material Tax liability or material adverse Tax consequences (each, as determined in good faith by the Parent Borrower); provided provided, that to the extent that the repatriation (or other intercompany distribution) of the relevant any Subject Proceeds, directly or indirectly, Proceeds from the relevant Foreign Subsidiary would no longer have a material Tax liability or material adverse tax consequence Tax consequences within the 365 day period one (1) year following the event giving rise date such prepayments are required to the relevant Subject Proceedsbe made, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this preceding clause (CB), shall be promptly applied to the repayment of the applicable Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above.above (without regard to this clause (iv)(B));
(v) At the Borrower’s option, any Term Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower Borrowers pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that (A) to the extent that any such prepayment is declined, in which case such Declined Proceeds the remaining amount thereof may be retained by the Borrower Borrowers and will be added to the Available Amount as set forth in clause (a)(vB) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with Indebtedness described in clauses (A) or (B) of Section 2.11(b)(iii) above. If any Lender fails to deliver a notice to the Net Proceeds Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(wvi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all Initial Term Loans or any portion of the Additional Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), and/or (zB) Incremental Equivalent Debt incurred with respect to refinance each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(ii) or a portion (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by the Parent Borrower (or, in the absence of direction from the Parent Borrower, to the remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages of the requirements applicable Class. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and other Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or SOFR Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the SOFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 2.16. Any prepayment of Initial Term Loans made on or prior to the date that is six (6) months after the Closing Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied by the fee set forth in Section 2.12(c).
(vii) [Reserved].
(viii) At the time of each prepayment required under Section 2.11(b)(ii) or (iii), the Parent Borrower shall deliver to the Administrative Agent a certificate signed by a Responsible Officer of the Parent Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings under Section 2.11(b) shall be subject to Section 2.16 and, in the case of prepayments under clause (iii) above as part of a Repricing Transaction shall be subject to Section 2.12(c), but shall otherwise be without premium or penalty.
(ix) Notwithstanding anything to the contrary herein, it is intended that the Loans will not be treated as “applicable high yield discount obligations” (“AHYDO”) within the meaning of Section 6163(i)(1) of the Code and the provisions contained herein shall be construed so that the Loans are not treated as AHYDO. Accordingly, starting on the fifth (5th) anniversary of the Closing Date and prior to the end of each accrual period (as defined in Section 1272(a)(5)) thereafter, the Parent Borrower shall pay such amounts of accrued and unpaid interest or original issue discount (as determined for U.S. federal income tax purposes) on the Loans as necessary to ensure that the Loans are not treated as having “significant original issue discount” within the meaning of Section 163(i)(1) of the Code. The computations and determinations made by the Parent Borrower under this provision shall be binding upon each Lender.
Appears in 1 contract
Mandatory Prepayments. (ia) [ReservedIntentionally Omitted].
(iib) No later than [Intentionally Omitted]
(c) In the fifth Business Day following the receipt event and on each occasion that any Net Cash Proceeds are received by or on behalf of Net Proceeds Holdings or any Subsidiary in respect of any a Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearEvent, the Borrower shall apply Borrowers shall, within five Business Days after such Net Cash Proceeds are so received, prepay the outstanding Loans in an aggregate principal amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) Applicable Prepayment Percentage of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Cash Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any Prepayment Event that is an Asset Sale, if the Borrowing Agent shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrowing Agent, on or prior to the date that a prepayment would otherwise be required hereunder if such proceeds relating certificate were not delivered, to the effect that Holdings and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a sale portion thereof specified in such certificate), within the Reinvestment Period applicable to such Net Cash Proceeds, to acquire real property, equipment or other event with respect tangible or intangible assets to a Restricted Subsidiary be used in the business of Holdings and the Subsidiaries (which real property, equipment or other assets must be assets that is not a Wholly Owned Subsidiary, become Collateral to pay Indebtedness of the extent that such SubsidiaryNet Cash Proceeds are attributable to assets that were Collateral), thenand certifying that no Default has occurred and is continuing, the Borrower then no prepayment shall not be required pursuant to make a mandatory prepayment under this clause (ii) paragraph in respect of such Net Cash Proceeds (or the Subject portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent the Subject of any such Net Cash Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior by the end of such Reinvestment Period, at which time a prepayment shall be required in an aggregate principal amount equal to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Cash Proceeds by the Borrower or its applicable Restricted Subsidiarythat have not been so applied. For purposes hereof, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary“Reinvestment Period” means, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted SubsidiaryNet Cash Proceeds, for so long as the distribution to period beginning on the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or date of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, Net Cash Proceeds and the distributed Subject Proceeds will be promptly ending twelve (and in any event not later than two Business Days after such distribution12) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”)months thereafter or, in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) respect of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of such Net Cash Proceeds that is committed to be reinvested in the Term Loans in accordance with business of Holdings and the requirements Subsidiaries during such initial twelve (12) month period, the period beginning on the date of Section 9.02(c), and/or receipt of such Net Cash Proceeds and ending eighteen (z18) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6months thereafter.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than If, on any date, the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds aggregate unpaid principal amount of all ordinary course asset sales, Revolving Loans then outstanding shall exceed the Aggregate Revolving Commitment then in each case, in excess of $15,000,000 in any Fiscal Yeareffect, the Borrower shall apply immediately prepay principal of the Revolving Loans in the amount of such excess.
(i) If on any date the Parent Company, the Borrower or any of the Subsidiary Guarantors shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, then an amount equal to 100% of the Net Cash Proceeds from such Asset Sale or Recovery Event shall be applied, not later than ninety (90) days (or, if any Event of Default shall then be continuing, one (1) Business Day) after the date of such percentageReinvestment Event, to prepay principal of the outstanding Loans, all as it may be reduced as described belowprovided by Section 2.6(e); provided, however, that the Parent Company, the “Borrower and the Subsidiary Guarantors shall be required to apply Net Cash Proceeds Percentage”received from any Asset Sale or Recovery Event towards prepayment of principal as provided above only (A) if any Event of Default shall be continuing at the time of the receipt of such Net Proceeds Cash Proceeds, or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”B) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect if and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereofthat such Net Cash Proceeds, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior when added to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the aggregate amount of Subject all other Net Cash Proceeds not so reinvested as received from Asset Sales or Recovery Events in the same Fiscal Year, shall exceed $500,000; and provided, further, that the requirements for mandatory prepayment set forth above in this clause (Ii) shall be reduced if and to the extent that the Borrower or the Parent Company elects, as hereinafter provided, to cause all or any part of such Net Cash Proceeds to be reinvested by the Borrower or by one or more of the Subsidiary Guarantors in Reinvestment Assets on or prior to the end of the applicable Reinvestment Period (herein called a “Reinvestment Election”)) (provided that, . The Borrower or the Parent Company may exercise the Reinvestment Election with respect to this clause any Asset Sale or Recovery Event only if (I), 1) no Event of Default shall be continuing at the Borrower’s election by written notice time of such Asset Sale or Recovery Event, and (2) the Borrower or the Parent Company delivers a Reinvestment Notice with respect to such Asset Sale or Recovery Event to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds Agent not later than ninety (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but 90) days after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt date of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause Reinvestment Event.
(ii) in respect of If the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunderParent Company, the Borrower or any of its Restricted Subsidiaries is required to Prepay the Subsidiary Guarantors shall at any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”)time receive Net Issuance Proceeds from any Financing Event, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the Net Issuance Proceeds from such Financing Event shall be applied within two (2) Business Days after receipt to prepay principal of the outstanding Loans, all as provided by Section 2.6(e); provided, however, that, unless any Event of Default shall then be continuing, the Parent Company, the Borrower and the Subsidiary Guarantors shall be required to apply Net Issuance Proceeds received from any issuance and sale by the Parent Company of its Permitted Equity Interests towards prepayment of principal as provided above only if and to the extent that such Net Proceeds Issuance Proceeds, when added to prepay the outstanding principal aggregate amount of all other Net Issuance Proceeds received from any issuance and sale by the relevant Class Parent Company of its Permitted Equity Interests in the same Fiscal Year, shall exceed $1,000,000.
(iii) Nothing in this paragraph (b) shall be construed as a consent for, or Classes of Term Loans in accordance with clause (vi) belowbe deemed to permit, any Asset Sale or Financing Event not otherwise permitted by this Agreement.
(iv) Notwithstanding anything in this Section 2.11(b) to On the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Reinvestment Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely Date with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans Reinvestment Election made pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (ivi)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds Reinvestment Prepayment Amount, if any, for such Reinvestment Election shall be applied as a mandatory prepayment of principal of the outstanding Loans, all as provided by Section 2.6(e).
(c) On each of the Excess Cash Flow Application Dates applicable to Fiscal Years 2006 and thereafter, an amount equal to 50% of the extent availableConsolidated Excess Cash Flow for the Fiscal Year last ended shall be applied as a mandatory prepayment of principal of the outstanding Loans, all as provided by Section 2.6(e).
(d) With respect to Eurodollar Rate Loans, the Borrower shall pay, together with each principal prepayment under this Section 2.6, accrued interest on the amount prepaid and not previously applied any amounts required pursuant to Section 2.5(c) or Section 3.5. Any prepayments pursuant to this clause Section 2.6 made on any day other than an Interest Payment Date for any Loan shall be applied: first, to any Base Rate Loans then outstanding; and, then, to Eurodollar Rate Loans with the shortest Interest Periods remaining; provided, however, that, so long as no Event of Default shall then be continuing, the Administrative Agent shall, upon the request of the Borrower, apply any such prepayments to Eurodollar Rate Loans only on the last day of each of the respective Interest Periods relating thereto, and, until such application of any such prepayments, the Administrative Agent shall hold the amount thereof as cash Collateral for the Obligations upon the terms contained in the Collateral Documents.
(Ce) Each prepayment of principal of the outstanding Loans required pursuant to Section 2.6(b) or 2.6(c) shall be applied: first, towards payment of unpaid principal of the Term Loans, until the entire unpaid principal of each of the Term Loans shall have been paid in full; and, second, towards payment of unpaid principal of the Revolving Loans, until the entire unpaid principal of each of the Revolving Loans is paid in full; and, third, towards payment of all of the other Obligations of the Principal Companies under the Loan Documents, until all of such Obligations shall have been paid in full.
(f) Each prepayment of principal of the outstanding Term Loans required pursuant to Section 2.6(b), 2.6(c) or 2.6(e) shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion remaining scheduled installments of the Term Loans pursuant to Section 6.01(p), 2.7(b) pro rata (x) Incremental Term Loans incurred to refinance all or a portion based on the principal amount then remaining unpaid of each of the scheduled installments of the Term Loans Loans).
(g) With respect to the Type of Loan to be prepaid, each prepayment required pursuant to this Section 2.222.6 shall, (y) Replacement Term Loans incurred subject always to refinance all or any portion Section 2.6(e), be applied, first, towards payment of the Term Loans in accordance with unpaid principal balance of each Base Rate Loan, until the requirements entire principal of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion each of the Term Base Rate Loans shall have been paid in accordance with full, and, second, towards payment of the requirements unpaid principal balance of each Eurodollar Rate Loan, until the entire principal of each of the Eurodollar Rate Loans shall have been paid in full, each in a manner which minimizes to the extent reasonably possible any amounts payable by the Borrower under Section 63.5.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Until the Term Loans have been repaid in full and the Tranche B Term Loan Commitments terminated, if any Capital Stock shall be issued by the Borrower (iiexcept any Excluded Equity Issuance) No later than or if any proceeds of an Excluded Equity Issuance required to be used for a Permitted Acquisition are not so used within 90 days of the fifth Business Day following issuance thereof, then on the receipt date of Net Proceeds in respect of any Prepayment Asset Sale such issuance (or Net Insurance/Condemnation Proceeds andsuch 90th day, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearas applicable), the Borrower Term Loans shall apply be prepaid by an amount equal to 10050% (such percentage, as it may be reduced as described below, of the “amount of the Net Cash Proceeds Percentage”) of such Net Proceeds issuance or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date proceeds. If any such prepayment is required to Indebtedness shall be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of incurred by the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause Subsidiaries (ii) excluding any Indebtedness incurred in respect of the Subject Proceeds to the extent accordance with Section 7.2 (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested except as set forth above in this clause (ISection 7.2(f)(ii)) (provided that, with respect to as in effect on the date of this clause (IAgreement), at then on the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt date of such Subject Proceeds) orincurrence, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly shall be prepaid by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating an amount equal to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Net Cash Proceeds required to be allocated of such incurrence. The provisions of this Section do not constitute a consent to the Other Applicable Indebtedness issuance of any equity securities by any entity whose equity securities are pledged pursuant to the terms thereofGuarantee and Collateral Agreement, and the remaining amount, if any, of the Subject Proceeds shall be allocated or a consent to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of any Indebtedness by the Borrower or any of its Restricted Subsidiaries after Subsidiaries.
(b) Until the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p)have been repaid in full and the Tranche B Term Loan Commitments terminated, (B) Incremental Term Loans incurred to refinance all or a portion of if on any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by date the Borrower or any of its applicable Restricted Subsidiary, apply an amount equal to 100% of such Subsidiaries shall receive Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay from any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, within 10 Business Days of receipt by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Net Cash Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced prepaid by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds amount of such Net Cash Proceeds; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid, by an amount equal to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied Reinvestment Prepayment Amount with respect to the repayment relevant Reinvestment Event. The provisions of this Section do not constitute a consent to the applicable Term Loans pursuant to consummation of any Disposition not permitted by Section 2.11(b) as otherwise required above7.5.
(vc) At Until the Borrower’s optionTerm Loans have been repaid in full and the Tranche B Term Loan Commitments terminated, if for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2006, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term Lender may elect, Loans shall be prepaid by notice an amount equal to the Administrative Agent at or prior ECF Percentage of such Excess Cash Flow. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the time and in the manner specified by the Administrative Agentfiscal year with respect to which such prepayment is made, prior to any prepayment of Term Loans are required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added delivered to the Available Amount as set forth in clause Lenders and (a)(vii) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that date such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6financial statements are actually delivered.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than 95 days after the fifth Business Day following the receipt end of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal YearECF Period (an “ECF Deadline”), the Borrower shall apply pay to the Term Lenders an aggregate amount (which shall be applied in accordance with Section 2.10(b)(v)) equal to 100% (A) the ECF Percentage of Excess Cash Flow, if positive, for such percentage, as it may be reduced as described below, ECF Period minus (B) the “Net Proceeds Percentage”sum of (x) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount all voluntary prepayments of Term Loans then subject to prepayment requirements during such ECF Period (or following the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down end of such ECF Period is then in effect and the Borrower does not notify the Administrative Agent in writing if such voluntary prepayments are made prior to the date any ECF Deadline for such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down ECF Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of any voluntary prepayments applied to reduce the Subject Proceeds mandatory prepayment required by this Section 2.10(b)(i) in respect of one ECF Period may not be applied to be allocated reduce such mandatory prepayment in a subsequent ECF Period) pursuant to Section 2.10(a) and (y) all voluntary repayments of Revolving Loans during such ECF Period (or following the end of such ECF Period if such voluntary repayments are made prior to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and ECF Deadline for such ECF Period; it being understood that the amount of any voluntary repayments applied to reduce the mandatory prepayment required by this Section 2.10(b)(i) in respect of the Subject Loans that would have otherwise been required one ECF Period may not be applied to reduce such mandatory prepayment in a subsequent ECF Period) pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) 2.10(a), to the extent the holders of Revolving Commitments are permanently reduced by the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied repayments, excluding, in all cases pursuant to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, clause (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%B), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date any payments or prepayments funded with proceeds of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Funded Debt.
(iiiA) In the event that If the Borrower or any of its Restricted Subsidiaries Subsidiary receives any Net Cash Proceeds from the issuance any Asset Sale or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness)Casualty Event, the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) shall pay to the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply Term Lenders an amount equal to 100% of such Net Cash Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans (which shall be applied in accordance with clause Section 2.10(b)(v)) on or prior to the date that is ten (vi10) belowBusiness Days after the date of actual receipt by the Borrower of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.10(b)(ii)(A) with respect to such Net Cash Proceeds that the Borrower or any Restricted Subsidiary shall reinvest in accordance with Section 2.10(b)(ii)(B); provided further that the foregoing proviso shall not apply to any Asset Sale made in reliance on Section 6.11(l).
(B) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale or Casualty Event, the Borrower or any Restricted Subsidiary may, at its option, reinvest or commit to reinvest all or any portion of such Net Cash Proceeds in assets useful for the Borrower’s or a Restricted Subsidiary’s business within 12 months following receipt of such Net Cash Proceeds (and, in the case of such a commitment, the reinvestment contemplated thereby shall actually have been consummated on or prior to the date that is the later of (x) 12 months following receipt of such Net Cash Proceeds and (y) 180 days following the date of the making of such commitment); provided further that any such Net Cash Proceeds that are not so reinvested within such 12 month period (as such period may be extended as contemplated by the immediately preceding parenthetical phrase) shall be applied as set forth in Section 2.10(b)(ii)(A) within five (5) Business Days after the end of such period;
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 6.01 (without prejudice to the restrictions therein), the Borrower shall pay to the Term Lenders an amount equal to 100% of the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary therefrom (which shall be applied in accordance with Section 2.10(b)(v)) on or prior to the date that is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the The Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to notify the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to writing of any mandatory prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all clauses (but not a portioni) through (iii) of its Applicable Percentage this Section 2.10(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. Any Term Lender (such declined amountsa “Declining Lender,” and any Term Lender which is not a Declining Lender, the an “Declined ProceedsAccepting Lender”), may elect, by delivering not less than four (4) Business Days prior to the proposed prepayment date, a written notice (such note, a “Rejection Notice”) that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to clauses (i) through (iii) of this Section 2.10(b) not be made, in which case event the portion of such Declined Proceeds may prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall be reoffered to the Accepting Lenders, and any prepayment amount remaining after such reoffer shall be retained by the Borrower (for itself and on behalf of its Restricted Subsidiaries). If a Term Lender fails to deliver a Rejection Notice within the time frame specified above, any such failure will be added to the Available Amount as set forth in clause (a)(v) deemed an acceptance of the definition thereof; provided that, for the avoidance total amount of doubt, no Lender may reject any such mandatory prepayment made under Section 2.11(b)(iiiof Term Loans.
(v) above to the extent that such Each prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to this Section 6.01(p)2.10(b) shall be applied, (x) Incremental first, in direct order of maturities, to the principal repayment installments of Term Loans incurred due within the eight fiscal quarters following such prepayment, second, on a pro rata basis to refinance all or a portion the other principal repayment installments of Term Loans other than the principal payment due on the Term Loan Maturity Date and third, to the principal payment on the Term Loan Maturity Date of Term Loans; and unless otherwise provided herein, each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in the outstanding Term Loans (prior to giving effect to any rejection by any Term Lender of any such prepayment pursuant to clause (iv) above).
(vi) Any prepayment of Term Loans pursuant to this Section 2.22, (y2.10(b) Replacement Term Loans incurred shall be accompanied by accrued interest and shall be subject to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 62.15.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
If Indebtedness shall be issued or incurred by any Loan Party (ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of excluding any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) Indebtedness incurred in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (Section 7.2, other than Cash or Cash EquivalentsPermitted Additional Subordinated Debt) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of the Net Cash Proceeds thereof shall be applied as soon as practicable but in any event within five Business Days after such issuance or incurrence toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d).
(b) If on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale, Specified Sale Leaseback Transaction or Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied as soon as practicable but in any event within ten days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, (i) a Reinvestment Notice may not be delivered with respect to prepay a Specified Sale Leaseback Transaction that is not a Designated Sale Leaseback Transaction, (ii) no such prepayment shall be required in respect of the first $1,000,000 of Net Cash Proceeds received during any fiscal year from Specified Sale Leaseback Transactions that are not Designated Sale Leaseback Transactions, (iii) a Reinvestment Notice with respect to a Designated Sale Leaseback Transaction shall not be permitted unless (A) after giving effect thereto and to any prepayments made hereunder, the aggregate outstanding principal amount of Tranche B Term Loans does not exceed $300,000,000 and (B) the relevant Class Reinvestment Deferred Amount shall not exceed 662/3 % of the Net Cash Proceeds therefrom (or Classes of the remaining Net Cash Proceeds therefrom, if a portion of such Net Cash Proceeds must be applied to prepay Tranche B Term Loans in accordance with order to satisfy the requirements of clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount above), so that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary a minimum of 331/3% of such Net Cash Proceeds (or the relevant remaining Net Insurance/Condemnation Proceeds are received by any Foreign SubsidiaryCash Proceeds, as the case may be, for so long as the repatriation ) are applied to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable prepay Tranche B Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause as provided herein, and (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in on each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Reinvestment Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject ProceedsDate, an amount equal to the Subject Proceeds Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d).
(c) If, for any fiscal year of the Borrower commencing with the fiscal year ending September 30, 2007, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and Swingline Loans made during such fiscal year to the extent availableaccompanying permitted optional reductions of the Revolving Commitments and the aggregate principal amount of all optional prepayments of Tranche B Term Loans made during such fiscal year, and not previously applied pursuant toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to this clause (Cin Section 6.1(a), shall for the fiscal year with respect to which such prepayment is made, are required to be promptly applied delivered to the repayment Lenders and (ii) the date such financial statements are actually delivered.
(d) The application of the applicable any prepayment of Tranche B Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option2.11 shall be made, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b)first, to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amountsABR Loans and, the “Declined Proceeds”)second, in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofEurodollar Loans; provided that, for the avoidance if such application would be inconsistent with Section 2.17 (b), then Section 2.17(b) shall apply. Each prepayment of doubt, no Lender may reject any prepayment made Tranche B Term Loans under Section 2.11(b)(iii) above 2.11 shall be accompanied by accrued interest to the extent that date of such prepayment is made with on the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans amount prepaid and by any amounts payable pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 62.20.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Unless the Required Prepayment Lenders shall otherwise agree, if any indebtedness for borrowed money (iiexcluding any Indebtedness permitted to be incurred in accordance with Section 7.2 or incurred with the consent of the Required Prepayment Lenders) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, shall be incurred by the Borrower shall apply or any of its Subsidiaries an amount equal to 100% (such percentage, as it may of the Net Cash Proceeds thereof shall be reduced as described below, applied within two Business Days of the “Net Proceeds Percentage”) date of receipt of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess toward the prepayment of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements as set forth in Section 2.12(d).
(b) Unless the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the Required Prepayment Lenders shall otherwise agree, if on any date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of Subsidiary Guarantor shall for its Restricted Subsidiaries, own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied within two Business Days of such date toward the Borrower prepayment of the Term Loans as set forth in Section 2.12(d); provided that notwithstanding the foregoing, (i) on the date (the “Trigger Date”) that is six months after the applicable Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not be required to make a mandatory prepayment under this clause actually expended by such Trigger Date and (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) if the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Subsidiary Guarantor shall receive Net Cash Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable periodfrom any Specified Asset Sale, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any then (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to Specified Asset Sale Multiple is greater than the expiration lower of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such SubsidiaryA) without reinvestment rights 5.00:1.00 and (B) if, at the time that any Consolidated Total Leverage Ratio on the date such prepayment would be required hereunder, Specified Asset Sale is consummated after giving pro forma effect to such Specified Asset Sale (the Borrower or any lower of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with (A) and (B) the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable IndebtednessLeverage Ratio”), then the portion of such Net Cash Proceeds equal to the product of the Applicable Leverage Ratio multiplied by Consolidated EBITDA of Holdings, the Borrower and its Subsidiaries directly attributable to such Specified Asset being disposed of shall be applied within two Business Days of such date toward the prepayment of the Term Loans as set forth in Section 2.12(d) with the remainder permitted to be applied in accordance with and subject to compliance with Section 7.6(h) and (y) otherwise, 100% of such Net Cash Proceeds shall be applied within two Business Days of the date on which such Net Cash Proceeds are received toward the prepayment of the Term Loans as set forth in Section 2.12(d).
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending June 30, 2008 (if the fiscal year of Holdings ends on June 30) or December 31, 2008 (if the fiscal year of Holdings ends on December 31), there shall be Excess Cash Flow, the Borrower shall, on the relevant Person may Excess Cash Flow Application Date thereafter, apply an amount equal to (i) the Subject Proceeds Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all optional prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such fiscal year, in each case other than to the extent any such prepayment is funded with the proceeds of new long-term indebtedness for borrowed money, toward the prepayment of the Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a pro rata basis date (an “Excess Cash Flow Application Date”) no later than three Business Days after 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.
(d) Amounts to be applied in connection with prepayments pursuant to Section 2.12 shall be applied to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Term Loans in accordance with Section 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the terms hereofTerm Loans under Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, and with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term Loans (which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans as provided in paragraph (d) above, on the Subject Loans date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that would have otherwise been required pursuant the Administrative Agent prepare and provide to this Section 2.11(b)(iieach Term Lender (which, for avoidance of doubt, includes each New Term Lender) a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be reduced accordingly in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay on the date (2each a “Mandatory Prepayment Date”) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within that is ten Business Days after the date of such rejection) be applied to prepay the Subject Prepayment Option Notice, the relevant Term Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness Lender by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount portion of the relevant Class or Classes of Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans in accordance with clause Loans. On the Mandatory Prepayment Date, (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(Ai) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise pay to the relevant Subject Proceeds, Term Lenders the Borrower shall take all commercially reasonable actions required by applicable Requirements aggregate amount necessary to prepay that portion of Law to permit the outstanding relevant Term Loans in respect of which such repatriation) Lenders have accepted (it being understood that if the repatriation of any Lender’s failure to object prior to the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such director, or result in, or Prepayment Option Notice and the amount to be reasonably expected to result in, a material risk prepaid in respect of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(bheld by such Lender) to the extent required herein prepayment as described above and (without regard to this clause (iv))),
(Bii) the Borrower shall not be required offer to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable pay to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, accepting Term Lenders an amount equal to the Subject Proceeds portion of the aggregate Prepayment Amount not accepted by the relevant Term Lenders, and (to the extent available, and not previously applied pursuant to this clause (C), accepted by any or all of such accepting Term Lenders) such amount shall be promptly applied to the repayment prepayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At held by such Term Lenders ratably based upon the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage aggregate principal amount of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereofLoans; provided that, for the avoidance of doubtfollowing such offer and application, no Lender may reject any prepayment made under Section 2.11(b)(iii) above amount remaining unapplied shall be returned to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Borrower.
Appears in 1 contract
Mandatory Prepayments. (a) The Borrower shall prepay on the first Business Day following notice by Calculation Agent (a “Mandatory Prepayment Notice”) of the occurrence of a Mandatory Prepayment Event (which need not be continuing) the aggregate principal amount of the Loans outstanding on such date together with all accrued interest thereon, together with any additional amounts required pursuant to Section 3.04 and any applicable Prepayment Amount (provided that, if the Calculation Agent fails to deliver such Mandatory Prepayment Notice by 6:00 p.m. on the date the relevant Mandatory Prepayment Event occurs, any Lender may deliver or cause to be delivered the Mandatory Prepayment Notice in respect of such Mandatory Prepayment Event to the Borrower (with a copy thereof to each other Lender and Agent) with the same effect as if such Mandatory Prepayment Notice was delivered by the Calculation Agent; provided, further, that any failure to so deliver a copy of a Mandatory Prepayment Notice to any Lender or Agent shall not invalidate the effectiveness of such Mandatory Prepayment Notice). For purposes of the delivery and receipt of any Mandatory Prepayment Notice and Section 10.02 with respect to any such Mandatory Prepayment Notice, (i) [Reserved].
Borrower consents to the delivery of such Mandatory Prepayment Notice by electronic communications and (ii) No later than Borrower’s “normal business hours” shall be 9:00 a.m. to 7:00 p.m. each Business Day. Notwithstanding anything to the fifth Business Day contrary contained herein, in the event that a Mandatory Prepayment Event occurs following any Potential Adjustment Event, Issuer Merger Event or Spin-Off Event, then the receipt of Net Proceeds in respect of any Calculation Agent and the Lenders agree not to send a Mandatory Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andNotice until such time as Calculation Agent has made its determination as to the appropriate adjustments, during any Scheduled Wind-Down Periodif any, Net Proceeds of all ordinary course asset salesto be made to (i) the Minimum Price, (ii) the Maximum Share Number, (iii) the Minimum ADTV Level, (iv) the LTV Margin Call Level, (v) the LTV Release Level and/or (vi) the Threshold ADTV Level, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received accordance with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then and subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowprovisions of Section 1.02(d); provided that (A) so long as no Scheduled Wind-Down Period is then in effect and if the Borrower does not notify the Administrative Calculation Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including fails to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, determination with respect to this clause (I), at such adjustments by 6:00 p.m. on the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of date the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), thenMandatory Prepayment Event occurs, the Borrower shall not be required to make a mandatory prepayment under this clause Required Lenders (ii) in respect of provided that the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable periodoutstanding Loans held by, and unused Commitments of, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with Calculation Agent and its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales Affiliates shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case excluded for purposes of any making such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness determination of Required Lenders) may make such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountadjustments, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and same effect as if they were made by the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Calculation Agent.
(iiib) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything Any prepayment described in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower 2.05 shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice made to the Administrative Agent at or prior to for the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) ratable accounts of the definition thereof; provided that, for the avoidance Lenders. The Administrative Agent shall forward to each Lender its Ratable Share of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that each such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6payment.
Appears in 1 contract
Sources: Margin Loan Agreement (Liberty Expedia Holdings, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than the fifth Business Day following the Immediately upon receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) by the Borrower or any of its Restricted Subsidiaries has committed to so reinvest of any Net Proceeds of any sale or disposition by the Subject Borrower or any of its Restricted Subsidiaries of any of its assets, or any Net Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable periodfrom any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall promptly prepay the Subject Loans with the Obligations in an amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (equal to all such Net Proceeds; provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) prepay the Obligations with respect to Net Proceeds from the sales of assets in respect the ordinary course of business, from sales of assets or from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Subject Proceeds to the extent the Subject Proceeds are so applied Borrower and its Restricted Subsidiaries (other than in current assets) within 18 12 months following receipt thereof (it being understood thereof; provided that if any Net Proceeds are not so reinvested by the Subject deadline specified above or if any such Net Proceeds have are no longer intended to be or cannot been be so applied prior reinvested, any such Net Proceeds shall be applied, in accordance with Section 2.12(d), to the expiration prepayment of the applicable period, the Borrower shall promptly prepay the Subject Term Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, Section 2.12. If at the time that any such prepayment would be required hereunderrequired, the Borrower or any of its Restricted Subsidiaries is required to Prepay offer to repurchase any other Indebtedness outstanding at such time that is secured by a Lien on a the Collateral ranking pari passu basis with the Obligations by Lien securing the Term Loans (such Indebtedness, “Other Pari Indebtedness”) pursuant to the terms of the documentation governing such other Indebtedness (with the Net Proceeds from such other Indebtednessdisposition, “Other Applicable Indebtedness”)casualty insurance policy or eminent domain, condemnation or similar proceeding, then the relevant Person Borrower, at its election, may apply the Subject such Net Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject applicable Class(es) of Term Loans and the Other Applicable Pari Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time)) to the outstanding Classes of Term Loans and such Other Pari Indebtedness; it being understood provided, that (1) the portion of the Subject such Net Proceeds allocated to the Other Applicable Pari Indebtedness shall not exceed the amount of the Subject such Net Proceeds required to be allocated to the Other Applicable Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject such Net Proceeds shall be allocated to the Subject applicable Class(es) of Term Loans in accordance with the terms hereofhereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2.12(a) shall be reduced accordingly and (2) accordingly; provided, that to the extent the holders of the Other Applicable Pari Indebtedness decline to have such Indebtedness Prepaidindebtedness repurchase or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Subject applicable Class(es) of Term Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding hereof,
(b) No later than the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to Business Day following the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that receipt by the Borrower or any of its Restricted Subsidiaries receives of any Net Proceeds from the any issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date Subsidiaries, (other than Indebtedness i) that is not permitted to be issued or incurred under this pursuant to Section 7.1 or (ii) that is intended to constitute Credit Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion in respect of any Class of Term Loans Loans, the Borrower shall prepay the Obligations in an amount equal to all such Net Proceeds. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on which the Borrower’s annual audited financial statements for such Fiscal Year are required to be delivered pursuant to Section 6.01(p5.1(a) (beginning with the Fiscal Year ending December 31, 2021), (Bi) Incremental Term Loans incurred to refinance all the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.50:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow for such Fiscal Year, (ii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Flow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that such amount shall be reduced on a portion dollar-for-dollar basis for such Fiscal Year by the aggregate amount of any Class voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.222.8, (CRevolving Loans) Replacement that rank pari passu in right of payment and security with the Term Loans incurred made pursuant to refinance all Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Pari Indebtedness at such time) provided that the portion of any Class such Excess Cash Flow allocated to the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the applicable Class(es) of Term Loans in accordance with the requirements terms hereof) to the prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the applicable Class(es) of Term Loans that would have otherwise been required pursuant to this Section 9.02(c2.12(c) and/or shall be reduced accordingly; provided that to the extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchases or prepaid, the declined amount shall promptly (Dand in any event within then (10) Incremental Equivalent Debt incurred Business Days after the date of such rejection) be applied to refinance all or a portion of any Class prepay the applicable Class(es) of Term Loans in accordance with the requirements terms hereof.Any such prepayment shall be applied in accordance with subsection (d) of Section 6.01(zthis Section. Any such prepayment shall be accompanied by a certificate signed by the Borrower’s chief financial officer certifying in reasonable detail the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(d) Any prepayments made by the Borrower pursuant to subsections (a), (b) or (c) of this Section shall be applied as follows: first, 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 in direct order of maturity; second, 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 (with no permanent reduction in the Revolving Commitments); and third, 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 Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) and (c) of this Section 2.12 prior to 1:00 p.m. at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each case Lender of the contents of the Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment with respect to any Class of Term Loans. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (a) or (c) of this Section 2.12 by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower (“Retained Declined Proceeds”).
(e) 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, the Borrower shall immediately repay 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 2.19. Each prepayment shall be applied as follows: first, to the Base Rate Loans to the full extent thereof; and second, to the Eurodollar Loans to the full extent thereof. If, after giving effect to prepayment of all Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
(f) Notwithstanding any provision of this Section 2.12 to the contrary, (i) to the extent required that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that any or all of the Net Proceeds received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary giving rise to a prepayment event pursuant to subsections (a) or (c) is prohibited or delayed by applicable local law from being repatriated to the terms hereof or thereof to prepay or offer to prepay such Indebtedness)United States, the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.12, but may be retained by the Borrower or its the applicable Foreign Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.12 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall promptly take all commercially reasonable actions required by applicable Requirements of Law local law to permit any such repatriation) ; or (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(iiii) to the extent that a Responsible Officer of the relevant Subject Borrower has reasonably determined in good faith in consultation with the Administrative Agent that repatriation of any of or all the Net Proceeds are received by any joint venture, in each case, solely with respect a Foreign Subsidiary or Excess Cash Flow attributable to any joint venture that is a Restricted Subsidiary, for so long as the distribution Foreign Subsidiary giving rise to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any prepayment event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) 2.12 would have a material adverse tax consequence, then in each case the Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the extent required herein (without regard to times provided in this clause (iv))Section 2.12, and
(C) to but may be retained by the extent that Borrower or the relevant Prepayment Asset Sale is consummated by any applicable Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if without being repatriated; provided that when the Borrower determines in good faith that repatriation of any of or all the repatriation (Net Proceeds or other intercompany distribution) to the BorrowerExcess Cash Flow, directly or indirectlyin each case, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise with respect to the relevant Subject Proceedssuch Net Proceeds or Excess Cash Flow, an amount equal to the Subject such Net Proceeds to the extent available, and not previously applied pursuant to this clause (C), or Excess Cash Flow shall be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p2.12(a) or Section 2.12(c), as applicable; provided that, the Borrower shall take all commercially reasonable actions available under local law to permit such repatriation. The non- application of proceeds as a consequence of this subsection (xf) Incremental Term Loans incurred to refinance all or a portion will not constitute an Event of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Default under this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. (i) [Reserved]If on any date any Borrower or any of the Subsidiary Loan Parties shall receive Net Cash Proceeds from any Prepayment Event described in clause (a) of the definition thereof, the Borrowers shall make a prepayment of the Revolving Loans in an aggregate amount equal to 100% of the Excess Net Cash Proceeds in accordance with this Section 2.4(b) within five (5) Business Days of receipt of such Excess Net Cash Proceeds; provided that notwithstanding anything to the contrary herein, the Borrowers shall not be required to prepay the Revolving Loans as a result of such Prepayment Event, if, (1) no Default or Event of Default has occurred and is continuing, and (2) with respect to any Excess Net Cash Proceeds received by any Borrower and/or any Subsidiary Loan Party from such Asset Sale, (x) any Borrower or one of the Subsidiary Loan Parties uses such Excess Net Cash Proceeds to replace, improve or repair the affected property or asset or acquire a long-term productive asset of the general type used in Borrowers’ business, (y) such Borrower or a Subsidiary Loan Party enters into a contract for such replacement, acquisition, improvement or repair within 180 days of such Asset Sale, and (z) such replacement, acquisition, improvement or repair is effected within 360 days of such Asset Sale; provided further that it is understood and agreed that, at the Borrowers’ sole option, Borrowers may grant a first priority enforceable Lien (subject to Permitted Liens) in favor of the Administrative Agent on terms substantially similar to the Collateral Documents delivered on or before the Effective Date on any asset or property improved, replaced or acquired pursuant to this Section 2.4(b)(i). In the event that such Borrower or a Subsidiary Loan Party (A) does not enter into a contract for such replacement, acquisition, improvement or repair on or before the last day of such 180 day period or (B) does not effect such replacement, acquisition, improvement or repair on or before the last day of such 360 day period, Borrowers shall within five (5) Business Days thereof make a prepayment of the Revolving Loans in an amount equal to such Excess Net Cash Proceeds.
(ii) No later than If on any date any Borrower or any of the fifth Business Day following the receipt of Subsidiary Loan Parties shall receive Net Cash Proceeds in respect of from any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds Event described in clause (b) of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Yearthe definition thereof, the Borrower Borrowers shall apply make a prepayment of the Revolving Loans in an aggregate amount equal to 100% of the Excess Net Cash Proceeds within five (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”5) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) belowBusiness Days; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior notwithstanding anything to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, thencontrary herein, the Borrower Borrowers shall not be required to make prepay the Revolving Loans as a mandatory prepayment under this clause result of such Prepayment Event, if, (ii1) in no Default or Event of Default has occurred and is continuing and (2) with respect of to any Excess Net Cash Proceeds received by any Borrower or the Subject Proceeds to the extent Subsidiary Loan Parties from such Prepayment Events, (x) any Borrower or one of the Subject Subsidiary Loan Parties uses such Excess Net Cash Proceeds are so reinvested within 18 months following receipt thereofto repair, improve or replace the affected property or asset or acquire a long-term productive asset of the general type used in Borrowers’ business, (y) the such Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during a Subsidiary Loan Party enters into a contract for such 18 month period and the Subject Proceeds are so reinvested repair, acquisition, improvement or replacement within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable periodPrepayment Event, and (z) such repair acquisition, improvement or replacement is effected within 360 days of the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (Prepayment Event; provided further that it is understood and agreed that, with respect to this clause (I), at the Borrower’s election by written notice Borrowers’ sole option, Borrowers may grant a first priority enforceable Lien (subject to Permitted Liens) in favor of the Administrative Agent on terms substantially similar to the Administrative AgentCollateral Documents delivered on or before the Effective Date on any asset or property improved, expenditures and investments occurring prior replaced or acquired pursuant to receipt this Section 2.4(b)(ii). In the event that such Borrower or a Subsidiary Loan Party (A) does not enter into a contract for such replacement, acquisition, improvement or repair on or before the last day of such 180 day period or (B) does not effect such replacement, acquisition, improvement or repair on or before the last day of such 360 day period, Borrowers shall within five (5) Business Days thereof make a prepayment of the relevant Subject Revolving Loans in an amount equal to such Excess Net Cash Proceeds.
(iii) If on any date any Borrower shall receive Net Cash Proceeds (and not otherwise applied from any Prepayment Event described in respect of any other prepayment required by this clause (ii)), but after c) of the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), thendefinition thereof, the Borrower Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds Revolving Loans in an aggregate amount equal to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Excess Net Proceeds of all ordinary course and non-ordinary course asset sales Cash Proceeds, which shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Revolving Loans in accordance with this Section 2.4(b) within five (5) Business Days.
(iv) If on any date any Borrower shall receive Net Cash Proceeds from any Prepayment Event described in clause (d) of the requirements definition thereof, the Borrowers shall make a prepayment of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term the Revolving Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an aggregate amount equal to 100% of such Net Cash Proceeds received by any Borrower which shall be applied to prepay the outstanding principal amount of the relevant Class or Classes of Term Revolving Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b2.4(b) to the contrary:
within five (A5) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveDays.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amountseach Mandatory Prepayment Collateral Coverage Ratio Test Date, the Revolving Loan Commitment shall be temporarily reduced by such amount so that the Mandatory Prepayment Collateral Coverage Ratio shall be no less than 2.50 to 1.00 (the amount of each such reduction, a “Declined ProceedsTemporary Line Block”), and if on such date, the aggregate outstanding Revolving Loans and the Letter of Credit Liabilities exceed the Revolving Loan Commitments then in which case effect (after giving effect to any such Declined Temporary Line Block), then the Borrowers shall make a prepayment of the Revolving Loans in an aggregate amount equal to such excess within five (5) Business Days after such Mandatory Prepayment Collateral Coverage Ratio Test Date; provided that in no event shall the Revolving Loan Commitment be temporarily reduced by an amount greater than the Excess Net Cash Proceeds may attributed to a Prepayment Event described in clause (a) and (b) of the definition thereof. At any time after a Temporary Line Block is implemented, if, on a Mandatory Prepayment Collateral Coverage Ratio Test Date, the Mandatory Prepayment Collateral Coverage Ratio is equal to or greater than 2.50 to 1.00, any Temporary Line Block currently in effect shall be retained reduced or eliminated, as applicable, by the Borrower and will be added amount that after giving effect to such reduction or the elimination of the Temporary Line Block, the Mandatory Prepayment Collateral Coverage Ratio is equal to or greater than 2.50 to 1.0. Notwithstanding anything in this Agreement to the Available Amount as contrary, if on any date set forth in clause (a)(va) of the definition thereof; provided thatof Mandatory Prepayment Collateral Coverage Ratio Test Date (A) the Mandatory Prepayment Collateral Coverage Ratio is less than 2.50 to 1.00 and (B) the aggregate outstanding Revolving Loans and the Letter of Credit Liabilities exceeds (1) the Revolving Loan Commitments then in effect (after giving effect to any then existing Temporary Line Block) or (2) during a Borrowing Base Period, for the avoidance of doubtBorrowing Base, no Lender may reject any then such Borrower or Subsidiary Loan Party shall not utilize such Excess Net Cash Proceeds until such time as the Borrower makes a prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Revolving Loans in an aggregate amount equal to such excess referenced in clause (B) above.
(vi) Amounts to be applied in connection with prepayments made pursuant to clauses (i)-(iv) of this Section 6.01(p)2.4(b) shall be applied to prepay the Revolving Loans, on a pro rata basis.
(xvii) Incremental Term Loans incurred to refinance all or a portion Pending the final application of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans such Net Cash Proceeds in accordance with this Section 2.4, the requirements of Section 9.02(c)Borrowers and their Subsidiaries may temporarily invest such Net Cash Proceeds in any manner that is not prohibited by this Agreement.
(viii) If, and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion on the date any prepayment of the Term Revolving Loans under this Section 2.4, there are Letter of Credit Liabilities outstanding, such prepayment shall be applied first, to Revolving Loans outstanding and, second, as cash collateralization for Letter of Credit Liabilities outstanding. In the event that the Borrowers shall be required pursuant to this Section 2.4 to provide cash collateralization for Letter of Credit Liabilities, Borrowers shall effect the same by paying to the Administrative Agent immediately available funds in accordance with an amount equal to the requirements required amount, which funds shall be retained by the Administrative Agent in a collateral account (as collateral security in the first instance for the Letter of Section 6Credit Liabilities) until such time as the Letters of Credit shall have been terminated and all of the Letter of Credit Liabilities paid in full.
(ix) If on any date the sum of the aggregate outstanding Revolving Loans and the Letter of Credit Liabilities exceeds the lesser of (A) the Revolving Loan Commitments then in effect and (B) during any Borrowing Base Period, the Borrowing Base, the Borrowers shall promptly (but in no event later than the two (2) Business Days after such date) prepay (or in the case of Letter of Credit Liabilities, cash collateralize) the Revolving Loans or Letter of Credit Liabilities in an aggregate amount equal to such excess.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) No later than On the fifth first Business Day following the receipt delivery of Net Proceeds in respect of any a Mandatory Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, Notice from the Calculation Agent to the Borrower shall apply an amount equal to 100% stating that a Mandatory Prepayment Event has occurred (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall which need not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)continuing) (provided that, with respect subject to this clause (Ithe last sentence of Section 2.05(b), at if the Borrower’s election Calculation Agent fails to deliver such Mandatory Prepayment Notice by written notice to 5:30 p.m. on the Administrative Agent, expenditures and investments occurring prior to receipt of date the relevant Subject Proceeds (and not otherwise applied Mandatory Prepayment Event occurs, any Lender may deliver or cause to be delivered the Mandatory Prepayment Notice in respect of such Mandatory Prepayment Event to the Borrower (with a copy thereof to each other Lender and Agent) with the same effect as if such Mandatory Prepayment Notice was delivered by the Calculation Agent; provided, further, that any other prepayment required by this clause (ii)), but after failure to so deliver a copy of a Mandatory Prepayment Notice to any Lender or Agent shall not invalidate the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt effectiveness of such Subject ProceedsMandatory Prepayment Notice) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans Loans, together with all accrued interest thereon and shall pay any additional amounts required pursuant to Section 3.04 and any applicable Prepayment Amount, and all other Obligations (other than contingent obligations for which no claim has been made).
(b) For purposes of the delivery and receipt of any Mandatory Prepayment Notice (including under Section 10.02), (i) Borrower consents to the delivery of such Mandatory Prepayment Notice by electronic communications and (ii) Borrower’s “normal business hours” shall be 9:00 a.m. to 6:00 p.m., each Business Day. Notwithstanding anything to the contrary contained herein, in the event that a Mandatory Prepayment Event occurs following any Potential Adjustment Event, Issuer Merger Event or Spin-Off Event, then the Calculation Agent and the Other Applicable Indebtedness Lenders agree not to send a Mandatory Prepayment Notice until such time as Calculation Agent has made its (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant or, subject to the terms thereofand conditions of the proviso to this sentence, and the remaining amountRequired Lenders have made their) determination as to the appropriate adjustments, if any, of to be made to (i) the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down PeriodMinimum Price, (xii) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
LTV Margin Call Level and/or (iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint ventureMaintenance LTV, in each case, solely in accordance with and subject to the provisions of Section 1.02(d); provided that, if the Calculation Agent fails to make its determination with respect to any joint venture such adjustments by 5:30 p.m. on the date the relevant Mandatory Prepayment Event occurs, the Required Lenders (provided that is a Restricted Subsidiarythe outstanding Loans held by, and unused Commitments of, the Calculation Agent and its Affiliates shall be excluded for so long as the distribution purposes of making such determination of Required Lenders) may make such adjustments, if any, in each case, in accordance with and subject to the Borrower provisions of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)1.02(d), and
(C) to with the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, same effect as if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced they were made by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveCalculation Agent.
(vc) At the Borrower’s option, any Term Lender may elect, by notice Any prepayment described in this Section 2.05 shall be made to the Administrative Agent at or prior to for the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) ratable accounts of the definition thereof; provided that, for the avoidance Lenders. The Administrative Agent shall forward to each Lender its Ratable Share of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that each such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6payment.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) No later than At any time and from time to time after the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds andIssuance Date, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) extent the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower Company or any of its Restricted Subsidiaries, thenSubsidiaries consummates an Alternative Transaction (the date of the consummation of such Alternative Transaction, the Borrower “Mandatory Prepayment Event Date”), the Company shall not be required to make a mandatory prepayment redeem all, but not less than all, the Outstanding Amount then outstanding under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans Note and the Other Applicable Indebtedness Notes on the Mandatory Prepayment Date (or accreted amount if such Other Applicable Indebtedness is issued as defined below) (the “Mandatory Prepayment” and together with original issue discount) at such timean “Optional Prepayment”, a “Prepayment”); it being understood that (1) the . The portion of the Subject Proceeds allocated this Note subject to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii2(b) shall be reduced accordingly prepaid by the Company in cash at a price equal to 150% of the Outstanding Amount being prepaid (the “Mandatory Prepayment Price” and together with an Optional Prepayment Price, a “Prepayment Price”). The Company shall effect the Mandatory Prepayment under this Section 2(b) by delivering a written notice thereof within no later than one (21) Business Day prior to the extent Mandatory Prepayment Event Date by electronic mail and overnight courier to the Holder and all, but not less than all, of the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, Notes (the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii“Mandatory Prepayment Notice”). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, The Mandatory Prepayment Notice shall be irrevocable. The Mandatory Prepayment Notice shall (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to state the date of such required prepayment is less on which the Mandatory Prepayment shall occur (the “Mandatory Prepayment Date” and together with an Optional Prepayment Date, a “Prepayment Date”) which date shall not be more than or equal to 0.75 to 1.00 two (2) Business Days following the Mandatory Prepayment Event Date and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) state the Net Proceeds Percentage shall be 25.0% if aggregate Outstanding Amount of the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of Notes which is being prepaid in such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds Mandatory Prepayment from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans Holder pursuant to this Section 2.11(b2(b) to and all of the extent required herein (without regard to this clause (iv))),
(B) holders of the Borrower shall not be required to prepay any amount that would otherwise be required to be paid Other Notes pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited analogous provisions under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of Other Notes on the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Mandatory Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required aboveDate.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cellect Biotechnology Ltd.)
Mandatory Prepayments. (i) [Reserved]If a Disposition Prepayment Event or Event of Loss occurs and the aggregate amount of the Net Cash Proceeds received by Holdings and its Restricted Subsidiaries exceeds (x) in connection with any individual Disposition Prepayment Event or Event of Loss, $10,000,000 or (y) from all of such Disposition Prepayment Events and Events of Loss occurring during any fiscal year, the greater of $34,000,000 and 10% of Consolidated EBITDA (with unused amounts in respect of any fiscal year being carried over to the immediately succeeding fiscal year) (and only amounts in excess of such threshold in any fiscal year shall be required to be prepaid), then promptly but in any event within five (5) Business Day of receipt by Holdings or such Restricted Subsidiary of the Net Cash Proceeds of such Disposition Prepayment Event or Event of Loss, the Borrowers shall deliver, or cause to be delivered, such excess Net Cash Proceeds to the Administrative Agent for the ratable account of the Term Lenders as a prepayment of the Term Loans. Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, such prepayment shall not be required to the extent Holdings or such Restricted Subsidiary reinvests the Net Cash Proceeds of such Disposition Prepayment Event or Event of Loss in productive assets (other than Inventory (except to the extent Inventory was subject to such an Event of Loss)) of a kind then used or usable in the business of Holdings and its Restricted Subsidiaries (or for payment of operating expenses in the case of Net Cash Proceeds of business interruption insurance or other similar insurance), within eighteen (18) months after the date of such Disposition Prepayment Event or Event of Loss, or enters into a binding commitment thereof within said one hundred eighty (180) day period and subsequently makes such reinvestment within an additional one hundred eighty (180) days thereafter; provided that the Parent Borrower notifies the Administrative Agent of Holdings’ or such Restricted Subsidiary’s intent to reinvest and of the completion of such reinvestment at the time such proceeds are received and when such reinvestment occurs, respectively.
(ii) No later than the fifth Immediately but in any event within one (1) Business Day following the of receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower by Holdings or any of its Restricted Subsidiaries has committed to so reinvest the Subject of Net Cash Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable periodincurrence of Indebtedness (other than Net Cash Proceeds from the incurrence of Indebtedness permitted hereunder that is not Refinancing Term Loans) the Borrowers shall deliver, the Borrower shall promptly prepay the Subject Loans with the amount of Subject or cause to be delivered, such excess Net Cash Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt Agent for the ratable account of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to Term Lenders as a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%)Term Loans.
(iii) In If at any time, the event Revolving Credit Exposure (excluding the face amount of any Letters of Credit that the Borrower are Cash Collateralized or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except back-stopped to the extent reasonable satisfaction of the relevant Indebtedness constitutes (AAdministrative Agent) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all exceeds the Revolving Credit Commitments or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of all Revolving Credit Loans denominated in an Alternative Currency exceeds the relevant Class Alternative Currency Sublimit, the Borrowers shall, within one (1) Business Day, upon notification of the Administrative Agent, prepay (or Classes Cash Collateralize, in the amount required by Section 2.03(f), in the case of Term Letters of Credit) the other Loans and Letters of Credit then outstanding in accordance with an amount equal to such excess, as applicable; provided that nothing in this clause (vib)(vi) belowshall reduce the Revolving Credit Commitments.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
contrary above, mandatory repayments with respect to Net Cash Proceeds received by a Foreign Subsidiary pursuant to clause (Ab)(i) the Borrower above shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, if and for so long as the Parent Borrower has reasonably determined in good faith that repatriation (or the obligation to repatriate) to the Parent Borrower of to make any such amount payments would be prohibited have material adverse tax consequences on Holdings and its Restricted Subsidiaries, taking into account any foreign tax credit or delayed under any Requirement of benefit actually received in connection with such repatriation, or would violate applicable local Law or conflict with the fiduciary duties applicable Organization Documents of such Foreign Subsidiary’s directors; provided, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, and to the extent applicableany such repatriation ceases to be prohibited by applicable local Law at any time during the one (1) year period immediately following the date on which the applicable mandatory prepayment pursuant to clause (b)(i) was required to be made, would no longer conflict with the fiduciary duties of such directorBorrowers shall reasonably promptly repatriate, or result incause to be repatriated, or be such Net Cash Proceeds, and the Borrowers shall reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to promptly pay such Subject Net Cash Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment applicable Lenders, which payment shall be applied in accordance with Section 2.05(b)(v).
(v) Any prepayment of a Term SOFR Loan or an Alternative Revolver Currency Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.04. Each prepayment of the applicable Term Loans pursuant to this Section 2.11(b2.05(b) shall be applied pro rata to each Class of Term Loan based upon the respective outstanding principal balances thereof and shall be applied to the extent required herein installments thereof as directed by the Borrowers (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood and agreed that if the relevant prohibition ceases to existBorrowers do not so direct at the time of such prepayment, such prepayment shall be applied against the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceedsscheduled repayments, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment if applicable, of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise Class under Section 2.07 in direct order of maturity) and shall be paid to the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans Appropriate Lenders in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6their respective Applicable Percentages.
Appears in 1 contract
Mandatory Prepayments. Notwithstanding any other provisions of this Section 5.2, (i) [Reserved].
(ii) No later than to the fifth Business Day following extent that any of or all the receipt of Net Cash Proceeds in respect of any Prepayment asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale or Prepayment Event (a “Foreign Asset Sale”), the Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Cash Proceeds of all ordinary course asset salesany Recovery Event from a Restricted Foreign Subsidiary (a “Foreign Recovery Event”), in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal or Excess Cash Flow that is attributable to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds Restricted Foreign Subsidiaries or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then a Subsidiary that is subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior minimum liquidity or similar regulations are prohibited or delayed by applicable local law or such regulations from being repatriated to the date any such prepayment is required United States or used to be made that it does not intend transferred to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, thenother Person, the Borrower shall portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would times provided in this Section 5.2 but may be required hereunderretained by the applicable Restricted Foreign Subsidiary or regulated Subsidiary so long, but only so long, as the applicable local law or regulation will not permit repatriation to the United States (the Borrower or any of its hereby agreeing to cause the applicable Restricted Subsidiaries is required Foreign Subsidiary to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance take all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent actions required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than five Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law local law to permit such repatriation) (it being understood that if or transfer to the Borrower or other Person, and once such repatriation or transfer of the relevant Subject any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law andlocal law or applicable regulation, to the extent applicable, would no longer conflict with the fiduciary duties of such director, repatriation or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds transfer will be promptly applied (net of additional Taxes that would be payable immediately effected and such repatriated or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject transferred Net Cash Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds Excess Cash Flow will be promptly (and in any event not later than two Business Days after such distributionrepatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein 5.2 and (without regard to this clause (iv)), and
(Cii) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines has determined in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay of or all the Term Loans pursuant to Section 2.11(b)(ii) above Net Cash Proceeds of any Foreign Asset Sale, any Foreign Recovery Event or Excess Cash Flow would result in a material adverse Tax liability (taking into account any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax cost consequence within with respect to such Net Cash Proceeds or Excess Cash Flow, the 365 day period following Net Cash Proceeds or Excess Cash Flow so affected may be retained by the event giving rise to applicable Restricted Foreign Subsidiary; provided that, in the relevant Subject Proceeds, an amount equal to the Subject Proceeds to the extent available, and not previously applied pursuant to case of this clause (Cii), on or before the date on which any Net Cash Proceeds from any Foreign Asset Sale or Foreign Recovery Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a) (or, in the case of Excess Cash Flow, a date on or before the date that is six months after the date such Excess Cash Flow would have been so required to be applied to prepayments pursuant to Section 5.2(a)(ii) unless previously repatriated in which case such repatriated Excess Cash Flow shall be have been promptly applied to the repayment of the applicable Term Loans pursuant to Section 2.11(b) as otherwise required above.
(v) At the Borrower’s option, any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b5.2(a), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the definition thereof; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred the Borrower applies an amount equal to refinance all such Net Cash Proceeds or a portion Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Restricted Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Term Loans pursuant to Section 2.22, Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) Replacement Term Loans incurred such Net Cash Proceeds or Excess Cash Flow are applied to refinance all or any portion the repayment of the Term Loans in accordance with the requirements Indebtedness of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6Restricted Foreign Subsidiary.
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