Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows: (i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess. (ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date. (iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii). (iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness. (v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date. (vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 2 contracts
Sources: Credit Agreement (American Commercial Lines Inc.), Credit Agreement (American Commercial Lines Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount sum of all Revolving Loans, Swing Line Loans and L/C Obligations then the outstanding exceeds balances of the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay and the Swing Line Loans to Loan exceeds the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Maximum Amount and (B) the Maturity Date.
Borrowing Base, in each case (iiifor (A) Ifand (B)) less the Minimum Excess Availability, at Borrower shall immediately repay the aggregate outstanding Tranche A Revolving Credit Advances to the extent required to eliminate such excess. If any time such excess remains after repayment in full of the Closing Date during any calendar year (including 2007)aggregate outstanding Tranche A Revolving Credit Advances, any Loan Party sells or otherwise disposes Borrower shall provide cash collateral for the Letter of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal Annex B to eighty-five percent (85%) of the Net Proceeds from extent required to eliminate such excess. If any such sale or disposition; provided that excess remains after so long as cash collateralizing the cash portion Letter of Credit Obligations, Borrower shall repay the consideration for any aggregate outstanding Tranche B Credit Advances to the extent required to eliminate such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence excess and the remaining consideration Tranche B Loan Commitments shall automatically be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedcorrespondingly permanently reduced. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment any Overadvance made pursuant to this clause Section 1.1(a)(iii) shall be repaid only on demand. Immediately upon receipt by any Credit Party of cash proceeds of any asset disposition (iiiexcluding proceeds of asset dispositions permitted by Sections 6.8(a) with respect to or 6.8(b)) or any sale (a “Relevant Sale”) if of Stock of any Subsidiary of any Credit Party, Borrower shall prepay the Borrowers advise the Administrative Agent Loans in writing at the time the Net Proceeds from an amount equal to all such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion proceeds, net of such Net Proceeds in replacement assets to the extent (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Net Proceeds are transaction and payable by Borrower in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and connection therewith (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, paid to non- Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and (D) an appropriate reserve for income taxes in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of accordance with GAAP in connection therewith. Any such Indebtedness.
(v) Not prepayment shall be applied in accordance with Section 1.3(c). If Borrower issues Stock, no later than four (4) the Business Days Day following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)cash proceeds thereof, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount all such proceeds, net of the sum of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateapplied in accordance with Section 1.3(c).
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Gottschalks Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount outstanding balance of all the aggregate Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Loan exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Maximum Amount and (B) the Maturity Date.
(iii) IfAggregate Borrowing Base, in each case less the aggregate outstanding Swing Line Loan at such time, then Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any time such excess remains after repayment in full of the Closing Date during any calendar year (including 2007)aggregate outstanding Revolving Credit Advances, any Loan Party sells or otherwise disposes Borrowers shall provide cash collateral for the Letter of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)ANNEX B to the extent required to eliminate such excess. Furthermore, in each case, in an aggregate principal amount equal to eighty-five percent (85%) if at any time the outstanding balance of the Net Proceeds from Revolving Loan of any Borrower exceeds such sale or disposition; provided that so long as Borrower's separate Borrowing Base less the cash portion outstanding balance of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion Swing Line Loan of such Net Proceeds Borrower at such time, then such Borrower shall immediately repay its Revolving Credit Advances in the time amount of sale will be counted such excess (and, if necessary, shall provide cash collateral for purposes its Letter of any prepayment required under this sentence and the remaining consideration shall be counted when received Credit Obligations as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counteddescribed above). Notwithstanding the foregoing, the any Overadvance made pursuant to SECTION 1.1(a)(iii) shall be repaid only on demand.
(ii) Immediately upon receipt by any Credit Party of any cash proceeds of any asset disposition (excluding, so long as no Default or Event of Default has occurred and is continuing, proceeds of asset dispositions permitted by SECTION 6.8(a)) or any sale of Stock of any Subsidiary of any Credit Party, Borrowers shall not repay the Loans, in each case in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrowers in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such prepayment shall be required to make a prepayment pursuant to this clause applied in accordance with SECTION 1.3(c).
(iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all If Holdings or any portion of such Net Proceeds in replacement assets to Borrower issues Stock or debt securities, then no later than the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from Business Day following the date of such Relevant Sale and (B) the acquisition receipt of such replacement assets occurs within 270 days from the date of such Relevant Sale. Ifany cash proceeds thereof, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract all Borrowers (in the case of clause (A)an issuance by Holdings) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the issuing Borrower shall prepay repay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount all such proceeds, net of the sum of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateapplied in accordance with SECTION 1.3(c).
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Track N Trail Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eightyWithin forty-five percent (85%45) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds days (cash and non-cash) shall be counted. Notwithstanding the foregoingor, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of a reduction of Term Loan Commitments, within five (5) Business Days) of the receipt by the Borrower or any of its Wholly-owned Subsidiaries of any Net Debt Proceeds from the incurrence of any Indebtedness pursuant to clause (Aa) the definition thereof by the Borrower or any of its Wholly-owned Subsidiaries (other than Excluded Debt)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance Borrower shall prepay any outstanding Term Loans or incurrence, prepay the reduce any outstanding Obligations in the manner set forth in Section 2.06(d), in each case, Term Loan Commitments in an aggregate principal amount equal to one hundred percent (100%) of such Net Debt Proceeds, to be applied as set forth in Section 2.9. Nothing in this Section 2.8(c)(i) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the Net Proceeds terms of such Indebtednessthis Agreement unless resulting in a payment in full.
(ii) [Reserved].
(iii) [Reserved].
(iv) [Reserved].
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date[Reserved].
(vi) The Borrowers shall deliver to [Reserved].
(vii) [Reserved].
(viii) Unless the Administrative AgentBorrower otherwise directs, at the time prepayments of each prepayment required Term Loans under this Section 2.06(c), (A2.8(c) a certificate signed shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Term 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 chief financial officer payment of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than together with any amounts due the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessLenders under Section 8.1.
Appears in 1 contract
Mandatory Prepayments. (a) If Indebtedness is incurred by any Group Member (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 (together with accrued and unpaid interest thereon) as set forth in Section 2.14(e). The Borrowers provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by any Group Member.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sales or Recovery Events (to the extent such Asset Sales or Recovery Events result in Net Cash Proceeds in excess of $15.0 million in the aggregate in any fiscal year (with only the amount in excess of such annual threshold required to be applied to such prepayment)) in a single transaction or a series of related transactions, then, unless a Reinvestment Notice shall be delivered in respect thereof (other than with respect to any Specified Sale and Leaseback Transaction, in respect of which no Reinvestment Notice shall be permitted) and no later than five Business Days (or, if an Event of Default has occurred and is continuing, two Business Days) after the date of receipt by any Group Member of such Net Cash Proceeds, an amount equal to 100% of the amount of such Net Cash Proceeds shall be applied to the prepayment of the Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(e) (any such amounts not required to prepay the Term Loans as a result of application of this clause, the “Retained Asset Sale Proceeds”, which shall not, however, include any proceeds incurred in connection with Sale and Leaseback Transactions permitted pursuant to Section 6.10); provided, that (i) 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 to the prepayment of the Term Loans (together with accrued interest thereon), (ii) the provisions of this Section 2.14 do not constitute a consent to the consummation of any Disposition not permitted by Section 6.5 and (iii) if at the time that any such prepayment would be required, the Term Loan Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay any other Indebtedness secured on a pari passu basis with the Obligations (other than the Revolving Credit Loans) pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or Recovery Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Term Loan Borrower may apply such Net Cash CollateralizeProceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the 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 Term Loans that would have otherwise been required pursuant to this Section 2.14(b) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or repaid with such net proceeds, the declined amount of such net proceeds shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the 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). Notwithstanding the foregoing, with respect to any Foreign Asset Sale or Foreign Recovery Event, the Term Loan Borrower may elect to reduce the amount of such prepayment by the amount of any Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds, as the case may be, included in such Net Cash Proceeds; provided, that the Term Loan Borrower shall use its commercially reasonable efforts such that the distribution of any amounts constituting Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds solely pursuant to clause (a) of the respective definition thereof (if such amounts were distributed), or the inclusion of any amounts constituting Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds solely pursuant to clause (a) of the respective definition thereof in Net Cash Proceeds for purposes of calculating any repayment obligation pursuant to this paragraph, as applicable, would not result in adverse tax consequences of more than a de minimis amount to Parent and its Subsidiaries (as reasonably determined by Parent), such that such amounts would not constitute Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds, as the case may be, as promptly as practicable following the date of such prepayment. For the avoidance of doubt, in no event shall the Term Loan Borrower be required to repatriate cash at Foreign Subsidiaries.
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term Loan 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 B Loans, 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 Business Days after the earlier of (x) the date on which the financial statements of Parent referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is to be made, are required to be delivered to the Lenders and (y) the date such financial statements are actually delivered. Notwithstanding the foregoing, the Term Loan Borrower may elect to reduce the amount of such prepayment by an amount equal to the ECF Percentage of Restricted ECF, if any, for such Excess Cash Flow; provided, that the Term Loan Borrower shall use its commercially reasonable efforts such that the distribution of such applicable percentage of amounts constituting Restricted ECF solely pursuant to clause (a) of the definition thereof (if such amounts were distributed), or the inclusion of such applicable percentage of amounts constituting Restricted ECF solely pursuant to clause (a) of the definition thereof in Excess Cash Flow for purposes of calculating any repayment obligation pursuant to this paragraph, would not result in adverse tax consequences (as reasonably determined by Parent), such that such amounts would not constitute Restricted ECF, as promptly as practicable following the Excess Cash Flow Application Date (and at such time (if applicable), shall prepay the Term B Loans by the amount thereof in accordance with this Section 2.14(c)). For the avoidance of doubt, in no event shall the Term Loan Borrowers be required to repatriate cash at foreign subsidiaries.
(d) (i) The Net Cash Proceeds of any Replacement Term Loans or any Permitted Term Loan Refinancing Indebtedness of Term A Loans (that is incurred to refinance Term A Loans) shall be used on a dollar-for-dollar basis for the repayment of Term A Loans to be repaid from such Net Cash Proceeds on the date such Net Cash Proceeds are received and (ii) the Net Cash Proceeds of any Replacement Term Loans or any Permitted Term Loan Refinancing Indebtedness of Term B Loans (that is incurred to refinance Term B Loans) shall be used on a dollar-for-dollar basis for the repayment of Term B 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 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 SOFR 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 2.14(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 SOFR Loans; provided, further, that the Borrowers 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 applicable Administrative Agent to secure the Obligations as followsand applied thereafter to prepay the SOFR Loans on the last day of the next expiring Interest Period for SOFR Loans; provided, that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the the SOFR Loan in respect of which such deposit was made, until such amounts are applied to prepay such SOFR Loan, and (B) (x) at any time while a Specified Event of Default has occurred and is continuing, the applicable Administrative Agent may, and (y) at any time while an Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the applicable Administrative Agent shall, apply any or all of such amounts to the payment of SOFR Loans.
(f) Any mandatory prepayment of (x) the Term Loans to be made pursuant to Section 2.14(b) shall be applied pro rata to the Term Loans under the Term Loan Facilities then outstanding based on the aggregate principal amounts of outstanding Term Loans of each Class under the Term Loan Facilities; provided that to the extent provided in the relevant Incremental Facility Amendment or Extension Amendment, any Class of Incremental Term A Loans, Incremental Term B Loans or Extended Term Loans under the Term Loan A Facility or the Term Loan B Facility may be paid on a pro rata basis or less than pro rata basis with any other Class of Term Loans under the Term Facilities and (y) Term B Loans to be made pursuant to Section 2.14(c) shall be applied pro rata to the Term B Loans then outstanding based on the aggregate principal amounts of outstanding Term B Loans; provided that to the extent provided in the relevant Incremental Facility Amendment or Extension Amendment, any Incremental Term B Loans or Extended Term Loans under the Term Loan B Facility may be paid on a pro rata basis or less than pro rata basis with the Term Loan B Facility.
(g) Notwithstanding anything in this Section 2.14 to the contrary:
(i) Ifany Term Loan A Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan A Lender) may elect, by notice to the Term Loan A Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all of any timemandatory prepayment of its Term A Loans pursuant to clauses (b) of this Section 2.14, in which case the aggregate amount of the prepayment that would have been applied to prepay Term A Loans but was so declined may be retained by the Group Members (such declined amounts to the extent retained by the Group Members, the Effective Amount “Declined Term Loan A Proceeds”); and
(i) [reserved]; and
(ii) any Term Loan B Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan B Lender) may elect, by notice to the Term Loan B Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all Revolving Loansof any mandatory prepayment of its Term B Loans pursuant to clauses (b) and (c) of this Section 2.14, Swing Line in which case the aggregate amount of the prepayment that would have been applied to prepay Term B Loans and L/C Obligations then outstanding exceeds but was so declined may be retained by the Group Members (such declined amounts to the extent retained by the Group Members, the “Declined Term Loan B Proceeds”).
(h) If for any reason, the Total Revolving Loan Commitment at such timeCredit Exposure exceeds the total Revolving Credit Commitments then in effect (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.10), the Revolver Borrowers shall immediately prepay Revolving Credit Loans and/or cash collateralize the Letters of Credit (Ain accordance with Section 2.7(j)) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable1) the Obligations as follows:
(i) If, If at any time, time the Effective Amount Aggregate Revolving Credit Exposure is in excess of all the aggregate Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment Credit Commitments in effect at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at for the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer account of the Borrowers setting forth in reasonable detail the calculation of Lenders, the amount of any such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) excess to be prepaid. In applied as a prepayment of the event that Revolving Loans then outstanding.
(2) Subject to Section 2.8(a)(6), if at any time Parent becomes obligated to prepay all or part of the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateSubordinated Debentures, the Borrowers Borrower shall promptly make an additional pay prior to any prepayment of the Subordinated Debentures, all Lender Indebtedness owed by the Borrower in full.
(3) If on any date any Credit Party shall receive Net Cash Proceeds from any Debt Offering, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans as set forth in Section 2.8(d)(1).
(and/or4) If at any time a Benchmark Collateral Value Deficiency shall occur or be in existence, if applicablea mandatory prepayment of the Loans shall be due in accordance with the terms of Section 2.8(d)(1) and Section 4.3.
(5) Any or all of (a) the Term A Loan Commitment remaining unused after the Closing Date shall automatically terminate at 5:00 p.m. (Dallas, Texas time) on such date, (b) the SPA Term Loan Commitment remaining unused after the Separation Agreement Payment Date shall automatically terminate at 5:00 p.m. (Dallas, Texas time) on such date, and (c) the SPA Loan Commitment remaining unused after the Gotham Litigation Payment Date shall automatically terminate at 5:00 p.m. (Dallas, Texas time) on such date.
(6) On the date of consummation of any Brookwood Disposition, the Revolving Loan Commitments shall be permanently reducedBorrower shall, on the date of such Brookwood Disposition, pay the greater of (A) in an $3,000,000 or (B) the difference between (i) the Net Cash Proceeds received by any Credit Party from such Brookwood Disposition and (ii) the amount equal paid (if any) to the amount holders of the Subordinated Debentures required to satisfy the Indebtedness owed to such holders thereunder in connection with such Brookwood Disposition, toward the prepayment of the Loans as set forth in Section 2.8(d)(2).
(7) On the date of consummation of any RE Disposition, the Borrower shall, on the date of such excessRE Disposition, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed pay all Lender Indebtedness owed by the chief financial officer Borrower in full.
(8) On the date of consummation of any HECO Disposition, the Borrower shall, on the date of such HECO Disposition, pay the greater of (A) $6,000,000 or (B) the Net Cash Proceeds received by any Credit Party from such HECO Disposition toward the prepayment of the Borrowers demonstrating the derivation of the additional amount resulting Loans as set forth in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay One hundred eighty (180) days after a Group Member’s receipt of proceeds of an asset Disposition pursuant to Section 7.5(c) (with respect to such Asset Disposition, such 180th day being herein called the “prepayment determination date”), or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any timeif such day is not a Business Day, the Effective Amount of all Revolving Loansnext succeeding Business Day, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Commitments shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will automatically be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested reduced by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, (and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Revolving Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to):
(a) If such prepayment determination date occurs prior to the date the Parent has an Investment Grade Rating, the excess of
(i) Net Book Value of such asset plus the Net Book Value of all other assets Disposed of pursuant to Section 7.5(c) after the date of this Agreement that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such asset Disposition, the amount of the proceeds of such excess, and the Borrowers shall concurrently therewith deliver Disposition (up to such Net Book Value) that has been applied to the Administrative Agent a certificate signed purchase or development of capital assets used in any line of business permitted by Section 7.13 within 180 days after the chief financial officer date of receipt of the Borrowers demonstrating the derivation proceeds of such Disposition, over (ii) 5% of the additional sum of (A) the Net Book Value of total consolidated assets of the Parent and its Subsidiaries as of the end of the fiscal quarter ending immediately prior to such Disposition plus (B) the Net Book Value of any assets that have previously been Disposed of pursuant to Section 7.5(c) after the date of this Agreement that have not been applied to the purchase or development of capital assets; or
(b) If such prepayment determination date occurs on or after the date the Parent has an Investment Grade Rating, the greater of :
(i) the excess of (A) the Net Book Value of such asset plus the Net Book Value of all other assets Disposed of pursuant to Section 7.5(c) during the period of 365 days ending on the date of such asset Disposition that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such asset Disposition, the amount resulting of the proceeds of such Disposition (up to such Net Book Value) that has been applied to the purchase or development of capital assets used in any line of business permitted by Section 7.13 within 180 days after the date of receipt of the proceeds of such excessDisposition over (B) 10% of the sum of Net Book Value of total consolidated assets of the Parent and its Subsidiaries as of the end of the fiscal quarter ending immediately prior to such Disposition plus the Net Book Value of any assets that have been Disposed of pursuant to Section 7.5(c) during such 365 day period that have not been applied to the purchase or development of capital assets; or
(ii) the excess of (A) the Net Book Value of such asset plus the Net Book Value of all other assets Disposed of pursuant to Section 7.5(c) after the date of this Agreement that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such asset Disposition, the amount of the proceeds of such Disposition (up to such Net Book Value) that has been applied to the purchase or development of capital assets used in any line of business permitted by Section 7.13 within 180 days after the date of receipt of the proceeds of such Disposition over (B) 25% of the sum of the Net Book Value of total consolidated assets of the Parent and its Subsidiaries as of the end of the fiscal quarter ending immediately prior to such Disposition plus the Net Book Value of any assets that have previously been Disposed of pursuant to Section 7.5(c) after the date of this Agreement that have not been applied to the purchase or development of capital assets.
(c) All prepayments made pursuant to this Section 3.2 will be applied first to Base Rate Loans and second to Eurodollar Loans.
Appears in 1 contract
Sources: Credit Agreement
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount outstanding balance of all the Tranche A Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Loan exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately lesser of (A) prepay the Tranche A Maximum Amount and (B) the Tranche A Borrowing Base, less, in each case, the outstanding Swing Line Loans Loan at such time less the Letter of Credit Obligations outstanding, Borrower shall immediately repay the aggregate outstanding Tranche A Revolving Credit Advances to the extent Swing Line Loans required to eliminate such excess. If any such excess remains after repayment in a sufficient amount are then outstandingfull of the aggregate outstanding Tranche A Revolving Credit Advances, (B) then prepay Borrower shall provide cash collateral for the Revolving Loans Letter of Credit Obligations in the manner set forth in Annex B to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal required to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to eliminate such excess.
(ii) The Borrowers shall repay each Swing Line If at any time the outstanding balance of the Tranche B Revolving Loan on exceeds the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Tranche B Maximum Amount and (B) the Maturity Date.
(iii) IfTranche B Borrowing Base, at any time after Borrower shall immediately repay the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets outstanding Tranche B Revolving Credit Advances to the extent (A) such Net Proceeds are in fact committed required to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in eliminate such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a any prepayment pursuant to this clause Section 1.3(b)(ii) shall be paid only after any and all mandatory prepayments required by Section 1.3(b)(i) have been paid.
(viii) with respect to Immediately upon receipt by any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four Credit Party of proceeds of any asset disposition (4) Business Days after the related Receipt Date that it or another Loan Party intends to repairincluding condemnation proceeds, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed but excluding proceeds of asset dispositions permitted by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (ASection 6.8(a)) or the completion any sale of the related repairStock of any Subsidiary of any Credit Party, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the amount of extent such excessLiens constitute Permitted Encumbrances hereunder), if any, and (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such prepayment shall be applied in accordance with clause (c) below.
(iv) If Holdings or Borrower issues Stock no later than the Borrowers shall concurrently therewith deliver to Business Day following the Administrative Agent a certificate signed by the chief financial officer date of receipt of the Borrowers demonstrating proceeds thereof, Borrower shall prepay the derivation Loans in an amount equal to all such proceeds, net of the additional amount resulting underwriting discounts and commissions and other reasonable transaction costs, fees and expenses paid to non-Affiliates in connection therewith. Any such excessprepayment shall be applied in accordance with clause (c) below.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) Upon receipt by any Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral, 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 Net Cash CollateralizeProceeds. Any such mandatory prepayment shall be applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 2.13(g) (Payments and Computations), any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, if an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% of such Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, 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 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 103% of such excess.
(d) The Borrower hereby irrevocably waives the right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as applicableprovided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows:: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees to apply such funds and the Borrower consents to such application. If (i) following such application, (ii) outside of a Liquidity Event Period or (iii) after all Letters of Credit shall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable (and, if an Event of Default shall have occurred and be continuing, cash collateral has been provided in an amount equal to 103% of the Letter of Credit Obligations in the manner required in Section 9.3 (Actions in Respect of Letters of Credit)), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto). AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(ie) At any time during a Liquidity Event Period, subject to Section 2.9(d) all amounts collected in the Concentration Account pursuant to Section 7.11 (Cash Management) shall be applied on each Business Day by the Administrative Agent first, to prepay the Loans (including Swing Loans) and then, if an Event of Default shall have occurred and be continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% 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. Following such application, the Administrative Agent shall, subject to Section 2.9(d) cause any remaining funds in the Concentration Account to be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto).
(f) If, at any time, the Effective Amount aggregate amount of all the Lenders’ Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Outstandings exceeds the Total aggregate Revolving Loan Commitment at such timeCredit Commitments as then in effect by greater than 5% for five consecutive Business Days solely due to fluctuations in currency exchange rates, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time within one Business Day after the Closing Date during any calendar year receipt of written notice thereof from the Administrative Agent repay Loans (including 2007), any Loan Party sells or otherwise disposes provide cash collateral for the Letter of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d), 9.3 (Actions in each case, in an aggregate principal amount equal to eighty-five percent (85%) Respect of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion Letters of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(dCredit) in an amount equal to the aggregate amount 103% of the sum Letter of such excess or such increase Credit Obligations) in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) such that, after giving effect to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicablerepayment, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to Credit Outstandings do not exceed the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessaggregate Revolving Credit Commitments.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) Upon receipt by any Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral, 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 Net Cash CollateralizeProceeds. Any such mandatory prepayment shall be applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 2.13(g) (Payments and Computations), any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, if an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% of such 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. AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, including in connection with the reduction described in Section 2.5 (Reduction and Termination of the Revolving Credit Commitments) on the date after the last day of the Amendment No. 5 Incremental Period, the Borrower shall 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 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 103% of such excess.
(d) The Borrower hereby irrevocably waives the right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as applicableprovided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows:: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees to apply such funds and the Borrower consents to such application. If (i) following such application, (ii) outside of a Liquidity Event Period or (iii) after all Letters of Credit shall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable (and, if an Event of Default shall have occurred and be continuing, cash collateral has been provided in an amount equal to 103% of the Letter of Credit Obligations in the manner required in Section 9.3 (Actions in Respect of Letters of Credit)), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto).
(ie) At any time during a Liquidity Event Period, subject to Section 2.9(d) all amounts collected in the Concentration Account pursuant to Section 7.11 (Cash Management) shall be applied on each Business Day by the Administrative Agent first, to prepay the Loans (including Swing Loans) and then, if an Event of Default shall have occurred and be continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% 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. Following such application, the Administrative Agent shall, subject to Section 2.9(d) cause any remaining funds in the Concentration Account to be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto).
(f) If, at any time, the Effective Amount aggregate amount of all the Lenders’ Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Outstandings exceeds the Total aggregate Revolving Loan Commitment at such timeCredit Commitments as then in effect by greater than 5% for five consecutive Business Days solely due to fluctuations in currency exchange rates, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time within one Business Day after the Closing Date during any calendar year receipt of written notice thereof from the AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION Administrative Agent repay Loans (including 2007), any Loan Party sells or otherwise disposes provide cash collateral for the Letter of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d), 9.3 (Actions in each case, in an aggregate principal amount equal to eighty-five percent (85%) Respect of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion Letters of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(dCredit) in an amount equal to the aggregate amount 103% of the sum Letter of such excess or such increase Credit Obligations) in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) such that, after giving effect to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicablerepayment, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to Credit Outstandings do not exceed the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessaggregate Revolving Credit Commitments.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (a) Subject to clause (c) below, upon receipt by the Borrower or any Loan Party of Net Cash CollateralizeProceeds arising from an Asset Sale (other than any Asset Sale permitted by Section 8.4(g)), as applicable) the Obligations as follows:
(i) IfProperty Loss Event, at any timeEquity Issuance or Debt Issuance, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to 100% of such Net Cash Proceeds; provided, however, that no such prepayment shall be required under this Agreement to the then Effective Amount of extent the L/C Obligations, in an aggregate principal amount equal First Lien Available Credit would be less than $75,000,000 after giving effect to such excessprepayment.
(iib) The Borrowers shall repay each Swing Line Loan on Upon receipt by the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), Borrower or any Loan Party sells or otherwise disposes of any assets (other than sales Net Cash Proceeds arising from an Asset Sale permitted under Sections 5.02(cSection 8.4(g)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of Net Cash Proceeds specified in clause (ii) below. Notwithstanding anything herein to the contrary, such excessNet Cash Proceeds shall be applied as follows:
(i) first, the Borrower shall immediately prepay that portion of the outstanding revolving loans (and provide cash collateral in respect of letters of credit) under the First Lien Credit Agreement in an amount equal to that portion of the First Lien Available Credit created solely by the inclusion of the assets subject to such Asset Sale in the Borrowing Base (as defined in the First Lien Credit Agreement) immediately prior to the consummation of such Asset Sale (and to the extent that there are no revolving loans outstanding under the First Lien Credit Agreement at such time and no Default or Event of Default under the First Lien Credit Agreement has occurred and is continuing, the Borrower shall be entitled to retain such Net Cash Proceeds); and
(ii) second, the Borrower shall apply 50% of the remaining balance of Net Cash Proceeds after giving effect to the application of such proceeds made under clause (i) above as a mandatory prepayment of the Loans.
(c) Notwithstanding clause (a) above, upon the occurrence of any Asset Sale or Property Loss Event in respect of which a Responsible Officer of the Borrower 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 Borrower shall be permitted to make Permitted Reinvestments using such Net Cash Proceeds, as set forth in the Reinvestment Notice for such Net Cash Proceeds, and shall not be required to prepay the Borrowers shall concurrently therewith deliver Loans to the Administrative Agent a certificate signed by extent provided in clause (a) above.
(ii) On each Reinvestment Prepayment Date for such Reinvestment Event, to the chief financial officer extent the First Lien Available Credit would not be less than $75,000,000 after giving effect to such prepayment, the Borrower shall prepay the Loans in an amount SECOND LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Prepayment Date.
(d) Together with any prepayment of the Borrowers demonstrating Loans pursuant to clauses (a) or (c) above, the derivation Borrower shall also pay the Prepayment Premium, if any, for such Loans calculated at the time of such prepayment.
(e) Notwithstanding the additional amount resulting in foregoing, no mandatory prepayment under this Section 2.7 shall be required if such excessprepayment is otherwise prohibited under the First Lien Credit Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Tecumseh Products Co)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
(i) If, If at any time, time the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount sum of (i) the L/C Obligations, in an aggregate outstanding principal amount equal to such excess.
of all Revolving Credit Loan Advances and the Swing Loan Advances, plus (ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur Letter of (A) Credit Liabilities, exceeds the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearRevolving Credit Commitments, the Borrower shall promptly prepay Revolving Credit Loan Advances, Swing Loan Advances and the outstanding Obligations in Letter of Credit Disbursements by the manner set forth in Section 2.06(damount of the excess or, if no Revolving Credit Loan Advances, Swing Loan Advances or Letter of Credit Disbursements are outstanding, the Borrower shall immediately pledge to the Agent cash or Cash Equivalent Investments (subject to no other Liens) in an amount equal to the excess as security for the Obligations. Any such mandatory prepayments shall be applied first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the amount prepaid to the date of prepayment.
(b) After any reduction in the Commitments pursuant to Section 2.11, the Borrower shall promptly prepay the outstanding Revolving Credit Loan Advances and Swing Loan Advances by the amount which the sum of the outstanding principal amount of the Advances under the Revolving Credit Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the aggregate amount of the sum Revolving Credit Commitments, as reduced.
(c) Upon the Disposition of such excess any assets (other than Dispositions of equity interests or such increase in such excess. Notwithstanding the foregoingDispositions of assets permitted under Sections 9.8(a) and (d)), the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately promptly prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated Advances by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount Net Proceeds of such excessDisposition; provided however, with respect to any Dispositions permitted under Sections 9.8(b), (c) and (e), the Borrower shall promptly prepay the Advances by an amount equal to the Net Proceeds of such Disposition to the extent such amount exceeds either (i) $2,000,000 per Disposition or (ii) $6,000,000 in the aggregate for all Dispositions which have occurred since the date hereof. Any such mandatory prepayments shall be applied first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to the Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and the Borrowers shall concurrently therewith deliver then to the Administrative Agent a certificate signed by remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the chief financial officer amount prepaid to the date of the Borrowers demonstrating the derivation of the additional amount resulting in such excessprepayment.
Appears in 1 contract
Sources: Credit Agreement (Ezcorp Inc)
Mandatory Prepayments. The Borrowers (a) In the event and on each occasion that the Borrower shall prepay issue any Stock (other than Excluded Borrower Stock) or Cash Collateralize, as applicable) the Obligations as follows:
issue or incur any Debt (i) If, at any timeother than Excluded Borrower Debt), the Effective Amount Borrower shall, concurrently with such issuance or incurrence, immediately give notice to the Administrative Agent of all Revolving Loanssuch issuance or incurrence, Swing Line Loans and L/C Obligations then outstanding exceeds on the Total Revolving Loan Commitment at such time, 3rd Euro-Dollar Business Day thereafter the Borrowers Borrower shall immediately (A) repay or prepay the Swing Line principal amount of the Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount 100% of the L/C Obligations, Net Proceeds of Stock (in an aggregate principal amount equal to such excessthe case of issuance of Stock) or 100% of the Net Proceeds of Debt (in the case of issuance or incurrence of Debt).
(iib) The Borrowers In the event and on each occasion that the Borrower or any of its Subsidiaries shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells sell or otherwise disposes dispose of any assets (other than sales permitted under Sections 5.02(c)Excluded Sales), the Borrowers Borrower shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any concurrently with such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required immediately give notice to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets sale or disposition, and on the 3rd Euro-Dollar Business Day thereafter the Borrower shall, to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount of Net Disposition Proceeds arising from such sale or disposition, when aggregated with the total amount of Net Disposition Proceeds arising from all other sales and in the manner described in the first sentence of this clause dispositions (iii).
(ivother than Excluded Sales) If, at any time made after the Closing Date, any Loan Party issues exceeds $50,000,000, repay or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount of the sum 100% of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Disposition Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) that such Net Insurance Disposition Proceeds and Net Condemnation Proceeds are in fact committed to exceed $50,000,000.
(c) Each such payment or prepayment shall be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed accompanied by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds an amount equal to the difference between the cost of such repair, restoration or replacement all accrued and unpaid interest on the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agentso prepaid (together with, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of prepayment of Euro-Dollar Loans, any amounts due under Section 8.05) and shall be applied to repay or prepay ratably the Loans of the several Banks in the inverse order of maturity; provided that any prepayment required pursuant to clause (A)a) or (b) above that occurs within the completion of ninety (90) day period immediately preceding the related repair, restoration or replacement (in the case of clause (B)), or the Borrower First Payment Date shall fail be applied to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in repay the first sentence of this clause (vprincipal installment referenced in Section 2.04(i). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Scana Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralizea) If on any date (including, as applicable) the Obligations as follows:
without limitation, (i) any date on which Dollar Equivalents are determined and (ii) the Expiration Date) the sum of the aggregate outstanding Principal Amount of Revolving Credit Loans and Bid Loans plus the Letter of Credit Outstandings (all the foregoing, collectively, the “Aggregate Outstandings”) exceeds the Commitments as then in effect, Holdings, the Company, AGRI, AGRO and/or the UK Borrower (as they shall determine) shall repay no later than the next following Business Day the principal amount of Revolving Credit Loans in an aggregate Principal Amount equal to such excess. If, at any timeafter giving effect to the prepayment of all outstanding Revolving Credit Loans as set forth above, the Effective Amount remaining Aggregate Outstandings exceed the Commitments, Holdings, the Company, AGRI, AGRO and/or the UK Borrower (as they shall determine) shall repay on such date the principal of Bid Loans in an aggregate amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving LoansCredit loans and Bid Loans as set forth above, Swing Line Loans the remaining Aggregate Outstandings exceed the Commitment, the Borrowers shall (i) establish an account in the name and L/C Obligations for the benefit of the Agent, as Agent for the Banks (the “Cash Collateral Account”), (ii) enter into a control agreement over such Cash Collateral Account satisfactory to the Agent, and (iii) fund the Cash Collateral Account with cash to be held as security for the Borrowers’ reimbursement obligations in respect of Letters of Credit then outstanding exceeds outstanding, equal to the Total Revolving Loan Letter of Credit Outstandings in excess of the Commitment at such time. In addition, at all times on and after the 90th day prior to the Expiration Date and continuing until all Letters of Credit have been terminated and all Obligations paid in full, the Borrowers shall immediately (A) prepay will maintain in the Swing Line Loans Cash Collateral Account an amount of cash equal to the extent Swing Line Letter of Credit Outstandings at such time.
(b) If on any date (including, without limitation, any date on which Dollar Equivalents are determined) the aggregate Principal Amount of Revolving Credit Loans and Bid Loans incurred by the UK Borrower plus the Letter of Credit Outstandings in respect of Letters of Credit issued for the account of the UK Borrower exceeds $12,500,000, the UK Borrower shall repay no later than the next following Business Day the principal amount of Revolving Credit Loans in a sufficient amount are then outstandingan aggregate Principal Amount equal to such excess. If, (B) then prepay the Revolving Loans after giving effect to the extent repayment of all outstanding Revolving Credit Loans incurred by the UK Borrower as set forth above, the sum of the outstanding Bid Loans incurred by the UK Borrower plus the Letter of Credit Outstandings in respect of Letters of Credit issued for the account of the UK Borrower exceeds $12,500,000, the UK Borrower shall repay on such date the principal of Bid Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an aggregate amount equal to such excess. If, after giving effect to the then Effective Amount repayment of all Revolving Credit Loans and Bid Loans incurred by the UK Borrower as set forth above, the Letter of Credit Outstandings in respect of Letters of Credit issued for the account of the L/C ObligationsUK Borrower exceed $12,500,000, the UK Borrower shall on such day (i) establish a Cash Collateral Account, (ii) enter into a control agreement over such Cash Collateral Account satisfactory to the Agent and (iii) fund such Cash Collateral Account with cash to be held as security for the UK Borrower’s reimbursement obligations in an aggregate principal amount respect of Letters of Credit equal to such excess.
(iic) The If on any date (including, without limitation, any date on which Dollar Equivalents are determined) the aggregate outstanding Principal Amount of Revolving Credit Loans and Bid Loans incurred by any of Holdings, AGRI or AGRO plus the Letter of Credit Outstandings in respect of Letters of Credit issued for the account of all of such Borrowers exceeds the Holdings Sub-Limit, Holdings, AGRI and/or AGRO shall repay each Swing Line Loan on no later than the earlier to occur next following Business Day the principal amount of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, Revolving Credit Loans in an aggregate principal amount Principal Amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Saleexcess. If, at any time after the occurrence of a Relevant Sale and prior giving effect to the acquisition repayment of all outstanding Revolving Credit Loans incurred by Holdings, AGRI and AGRO plus the related replacement assets, Letter of Credit Outstandings in respect of Letter of Credit issued for the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds account of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar yearBorrowers, in the aggregate, exceed $25,000,000 for exceeds the Holdings Sub-Limit, Holdings, AGRI and/or AGRO shall repay on such calendar year, date the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) principal of Bid Loans in an aggregate amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding If, after giving effect to the foregoingrepayment of all Revolving Credit Loans and Bid Loans incurred by Holdings, AGRI and AGRO, in the aggregate, as set forth above, the Borrower Letter of Credit Outstandings in respect of Letters of Credit issued for the account of such Borrowers, in the aggregate, exceeds the Holdings Sub-Limit, Holdings, AGRI and/or AGRO shall not be required to make on such day (i) establish a prepayment pursuant to this clause Cash Collateral Account, (vii) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which enter into a control agreement over such Net Insurance Proceeds or Net Condemnation Proceeds derived Cash Collateral Account satisfactory to the extent Agent and (Aiii) fund such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed Cash Collateral Account with cash to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing held as security for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost Borrowers’ reimbursement obligations in respect of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds Letters of Credit equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateexcess.
(vid) The Borrowers shall deliver to If on any date (including, without limitation, any date on which Dollar Equivalents are determined) the Administrative Agent, at the time Letter of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateCredit Outstandings exceed $100,000,000, the Borrowers shall promptly make an additional prepayment (i) establish a Cash Collateral Account, (ii) enter into a control agreement over such Cash Collateral Account satisfactory to the Agent and (iii) fund such Cash Collateral Account with cash to be held as security for the Borrowers’ reimbursement obligations in respect of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount Letters of Credit equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, Collective Facilities at any time, the Effective Amount of all Revolving Loans, Swing Line Loans times and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth below in Section 2.06(d), the respective amounts set forth in each case, in an aggregate principal amount equal to eighty-five percent the following clauses (85%i) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (Bii) (the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause “Mandatory Prepayment Funds”):
(Ai) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in In the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or any Material Asset Sale occurring during a Default or Event of Default shall occurLeverage Trigger Period, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) within 3 Business Days following the date end of receipt the applicable Reinvestment Period (each a the “Receipt Repayment Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the Collective Facilities in an aggregate amount equal to all Net Cash Proceeds resulting from such Material Asset Sale; provided, however, that the amount of the required prepayments under this clause (i) shall be reduced first by, for any Material Asset Sale individually, the amount of any Reinvestments up to the amount of such Net Cash Proceeds made during the 6-month period immediately following the closing of such Material Asset Sale (the “Reinvestment Period”) and second by, for all Material Asset Sales collectively, the first $100,000,000 of Net Cash Proceeds above any such Reinvestments resulting from such Material Asset Sales; provided, however, that (1) if the applicable Repayment Date is not during a Leverage Trigger Period, then no Mandatory Prepayments shall be required with respect to such Material Asset Sale pursuant to this Section 2.07(c)(i), and (2) if, on the applicable Repayment Date, a Subsidiary of the Borrower shall be a party to a binding contract for the purchase of an Unencumbered Property executed during the applicable Reinvestment Period, then the applicable Reinvestment Period shall be extended for a period of 60 days upon Borrower’s notice to the Administrative Agent, which notice shall be accompanied by a certified copy of the applicable purchase contract, but in no case shall a single Reinvestment Period be so extended more than once; and
(ii) In the case of any Refinancing Debt incurred during a Leverage Trigger Period, within 3 Business Days following incurrence of such Refinancing Debt, the Borrower shall prepay the Collective Facilities in an aggregate amount equal to all Net Cash Proceeds resulting from such Refinancing Debt. The Mandatory Prepayment Funds shall first be applied to the Collective Facilities on a pro rata basis based on the principal amount, as of the date of the applicable prepayment, of outstanding Obligations Advances (as such term is defined herein or in the manner set forth in Section 2.06(d2021 Term Loan Agreement, as applicable) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excessMandatory Commitment Reduction. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days Any Mandatory Prepayment Funds remaining after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in applying an amount equal to the amount of such excess, and Mandatory Commitment Reduction as described in the Borrowers immediately preceding sentence shall concurrently therewith deliver be applied to the Administrative Agent a certificate signed by outstanding Revolving Facility Advances. Any Mandatory Prepayment Funds remaining after payment of all outstanding Revolving Facility Advances shall be deposited into the chief financial officer Cash Collateral Account up to the outstanding Letter of Credit Exposure as security for the Borrowers demonstrating the derivation of the additional amount resulting Obligations and such funds shall be disbursed in such excessaccordance with Section 8.04 mutatis mutandis.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (LaSalle Hotel Properties)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount outstanding balance of all the aggregate Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Loan exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Maximum Amount and (B) the Maturity Date.
(iii) IfAggregate Borrowing Base, at any time after the Closing Date during any calendar year (including 2007)less, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))in each case, the aggregate outstanding Swing Line Loan at such time, Borrowers shallshall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, immediately after Borrowers shall provide cash collateral for the completion Letter of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)Annex B to the extent required to eliminate such excess. Furthermore, in each case, in an aggregate principal amount equal to eighty-five percent (85%) if the outstanding balance of the Net Proceeds from Revolving Loan of any such sale or disposition; provided Borrower exceeds that so long as Borrower's separate Borrowing Base at any time less the cash portion outstanding balance of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion Swing Line Loan of such Net Proceeds Borrower at such time, the time applicable Borrower shall immediately repay its Revolving Credit Advances in the amount of sale will be counted such excess (and, if necessary, shall provide cash collateral for purposes its Letter of any prepayment required under this sentence and the remaining consideration shall be counted when received Credit Obligations as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counteddescribed above). Notwithstanding the foregoing, the any Overadvance made pursuant to Section 1.1(a)(iii) shall be repaid only on demand.
(ii) Immediately upon receipt by any Credit Party of proceeds of any asset disposition (including condemnation proceeds, but excluding proceeds of asset dispositions permitted by Section 6.8(a)) or any sale of Stock of any Subsidiary of any Credit Party, Borrowers shall not be required prepay the Revolving Loan and Swing Line Loan in an amount equal to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from all such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion proceeds, net of such Net Proceeds in replacement assets to the extent (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Net Proceeds are transaction and payable by Borrowers in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and connection therewith (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and (D) an appropriate reserve for income taxes in an aggregate principal amount equal to one hundred percent accordance with GAAP in connection therewith. Any such prepayment shall be applied in accordance with clause (100%c) of the Net Proceeds of such Indebtednessbelow.
(viii) Not If any Borrower issues Stock other than as a result of an equity contribution in connection with a Permitted Acquisition, no later than four (4) the Business Days Day following the date of receipt (each a “Receipt Date”) by a Loan Party (or of the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearcash proceeds thereof, the issuing Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Revolving Loan and Swing Line Loan in an amount equal to the aggregate amount all such proceeds, net of the sum of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such excess or such increase prepayment shall be applied in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this accordance with clause (vc) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datebelow.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash CollateralizeIn accordance with Section 2.1(f)(iii), as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) during a Repayment Event, on each Scheduled Payment Date, the Borrower shall prepay the Swing Line Loans as required pursuant to Section 3.3(d)(3) of the extent Swing Line Loans in a sufficient amount are then outstanding, CADA; (B) then if any Loan Party or any of such Loan Party’s Subsidiaries (x) incurs or issues any Debt after the Closing Date that is not otherwise permitted to be incurred pursuant to Section 6.3 or (y) issues any capital stock, then, in each case, the Borrower shall prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C ObligationsLoans, in an aggregate principal amount equal to such excess.
100% of all net proceeds received therefrom, on or prior to the date which is two (ii2) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time Business Days after the Closing Date during any calendar year (including 2007), any receipt by the Borrower or such Loan Party sells or otherwise disposes of such net proceeds; (C) upon receipt of any assets (other than sales permitted under Sections 5.02(c)funds for the prepayment of principal pursuant to Section 2.10(b), the Borrowers shall, immediately after the completion Borrower shall cause such funds to be applied as a prepayment of each sale or other disposition, prepay the Obligations in the manner Outstanding Principal; (D) except as otherwise set forth in Section 2.06(d2.10(b), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes upon receipt of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% proceeds of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearSubject Fund, the Borrower shall prepay the outstanding Obligations cause such proceeds to be deposited in the manner set forth in Section 2.06(dRevenue Account and applied as a prepayment of Outstanding Principal; (D) if for any reason the aggregate outstanding principal amount of any Lender’s Loans exceeds the Commitment of such Lender during the Availability Period, the Borrower shall immediately prepay such Loans in an amount equal to such excess (and any such prepayment shall be applied to the aggregate amount of the sum outstanding principal of such excess or such increase in such excess. Notwithstanding Lender’s Loans); and (E) upon receipt of any Equity Contributions for the foregoingpurpose of curing a Default under Section 8.1(l), the Borrower shall cause the proceeds of such Equity Contribution to be applied as a prepayment of Outstanding Principal in an amount not be less than the amount required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if satisfy the Applicable Threshold Test; provided that the Borrower advises may cure any Default under Section 8.1(l) by, within ten (10) Business Days from the date of the Borrowing Base Certificate referred to in Section 8.1(l), making a request to the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it to add additional Systems or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived Subject Funds to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are Available Borrowing Base in fact committed accordance with the terms set forth in this Agreement in order to cause the Outstanding Principal to be utilized less than the Available Borrowing Base. In the event that adding such additional Systems or Subject Funds to repairthe Available Borrowing Base would [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. cause the Available Borrowing Base to exceed the Outstanding Principal, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed as evidenced by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with new Borrowing Base Certificate approved by the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior new Systems or Subject Funds are subsequently added to the completion Available Borrowing Base in accordance with the terms of this Agreement within such ten (10) Business Day period, then any Default under Section 8.1(l) shall be deemed to be cured. For the corresponding repairavoidance of doubt, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of no such Default shall occur, then be deemed cured if the Borrower shall immediately prepay inclusion of new Systems or Subject Funds does not otherwise reduce the outstanding Obligations in the Outstanding Principal to an amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater less than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessAvailable Borrowing Base.
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Mandatory Prepayments. The Borrowers (a) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising (i) from an Asset Sale, Property Loss Event, or Debt Issuance, the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit, if applicable) in an amount equal to 100% of such Net Cash Proceeds (except Net Cash Proceeds subject to a Reinvestment Event as provided below) and (ii) from an Equity Issuance (other than an Equity Issuance to the extent applied to the purchase consideration for a Permitted Acquisition within 180 days of such 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 if the Leverage Ratio as of the last day of the most recently ended Fiscal Quarter is (A) less than 5.5 to 1.0, then the foregoing percentage with AMENDED AND RESTATED CREDIT AGREEMENT KNOLOGY, INC. respect to Equity Issuances shall be reduced to 25% or (B) less than 4.5 to 1.0, then such percentage shall be reduced to 0%. Any such mandatory prepayment shall be applied as provided in clause (c) below; provided, however, that, in the case of any Net Cash Proceeds subject to a Reinvestment Event, the Borrower shall, pending application of such Net Cash Proceeds, (x) immediately upon receipt of such Net Cash Proceeds deposit an amount equal to 100% of such Net Cash Proceeds in a deposit account of the Borrower or (y) at the Borrower’s option, to the extent that there are Revolving Credit Outstandings at such time, prepay the Revolving Loans or provide cash collateral in respect of Letters of Credit (but which shall not result in any permanent reduction in the Revolving Credit Commitments). On any Reinvestment Prepayment Date, the Borrower shall prepay the Loans in an amount equal to the remaining Reinvestment Deferred Amount which has not been reinvested as of such date in accordance with the applicable Reinvestment Notice, which prepayment shall be applied as provided in clause (c) below.
(b) The Borrower shall prepay the Loans within 95 days after the last day of each Fiscal Year, in an amount equal to 50% of Excess Cash Flow for such Fiscal Year; provided, however, that if the Leverage Ratio as of the last day of such Fiscal Year is (i) less than 3.75 to 1.0, then such percentage shall be reduced to 25% for such Fiscal Year or Cash Collateralize(ii) less than 3.00 to 1.0, as applicablethen such percentage shall be reduced to 0% for such Fiscal Year. Any such mandatory prepayment shall be applied in accordance with clause (c) below.
(c) Subject to the Obligations provisions of Section 2.13(g) (Payments and Computations), any mandatory prepayments made by the Borrower required to be applied in accordance with this clause (c) shall be applied as follows:
(i) Ifother than with respect to any mandatory prepayment in connection with any Permitted Existing Term Loan Refinancing Indebtedness and subject, with respect to mandatory prepayments pursuant to clause (a) and (b) above, to clause (e) below, first, to the prepayment of the Term Loans to repay the outstanding principal balance of the Term Loans on a pro rata basis between the Existing Term Loan Facility and the Extended Term Loan Facility, until such Term Loans shall have been prepaid in full; provided, however any mandatory prepayment with the Net Cash Proceeds of an Equity Issuance or a Debt Issuance pursuant to this Section 2.9 may be applied, at any timethe election of the Borrower, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately either (A) prepay first, to the Swing Line prepayment of the Existing Term Loans to repay the extent Swing Line outstanding principal balance of the Existing Term Loans, until such Existing Term Loans shall have been prepaid in a sufficient amount are then outstandingfull and second, to the prepayment of the Extended Term Loans to repay the outstanding principal balance of the Extended Term Loans, until such Extended Term Loans shall have been prepaid in full or (B) then prepay to the prepayment of the Extended Term Loans in an amount up to but not exceeding the Extended Term Loan Cap with the remainder applied to the prepayment of the Existing Term Loans, until such Existing 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 to the extent until such Revolving Loans shall have been paid in a sufficient amount are then outstanding full; and (C) otherwisethen, Cash Collateralize the to provide cash collateral for any Letter of Credit Obligations in an amount equal to the then Effective Amount 105% of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur Letter of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)9.3 (Action 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 AMENDED AND RESTATED CREDIT AGREEMENT KNOLOGY, INC.
(ii) with respect to any mandatory prepayment in each caseconnection with any Permitted Existing Term Loan Refinancing Indebtedness, in an aggregate principal amount equal to eighty-five percent (85%) the prepayment of the Net Proceeds from any such sale or disposition; provided that so long as Existing Term Loans to repay the cash portion outstanding principal balance of the consideration for any Existing Term Loans, until such disposed assets is not less than 90% Existing Term Loans have been prepaid in full. All repayments of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment Term Loans made pursuant to this clause (iiic) with respect shall be applied to any sale (a “Relevant Sale”) if reduce the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion remaining installments of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition outstanding principal amounts of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Term Loans pro rata to such installments.
(ivd) If, If at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtednesstime, the Borrowers shallaggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments at such time, immediately after such issuance or incurrence, 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 2.06(d), 9.3 (Action in each case, in an aggregate principal amount equal to one hundred percent (100%) Respect of the Net Proceeds Letters of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(dCredit) in an amount equal to 105% of such excess.
(e) In connection with any mandatory prepayment pursuant to clause (a) and clause (b) above which is to be made in accordance with clause (c)(i) above, the Borrower shall give the Administrative Agent 10 Business Days prior notice of any such mandatory prepayment, whereupon the Administrative Agent shall promptly notify each applicable Term Loan Lender thereof. Any such Term Loan Lender may, at its option, elect not to accept such prepayment of its Term Loan (any Term Loan Lender making such election being a “Declining Lender”); provided that each Declining Lender shall give written notice thereof to the Administrative Agent not later than 11:00 a.m. New York City time on the eighth Business Day preceding the date of the applicable mandatory prepayment. The Administrative Agent shall offer the aggregate amount of the sum mandatory prepayments declined by the Declining Lenders to the applicable Term Loan Lenders who are not Declining Lenders (each, a “Non-Declining Lender”) no later than the fifth Business Day preceding the date of the applicable mandatory prepayment each Non-Declining Lender shall be permitted to elect to receive such Non-Declining Lender’s pro rata share of such excess remaining amount (calculated based on such Non-Declining Lender’s pro rata share of the aggregate amount of Term Loans, Existing Term Loans or Extended Term Loans, as applicable, at such increase in time), among those Non-Declining Lenders who have accepted such excesspayment of such amount, by giving written notice no later than 11:00 a.m. New York City time on the third Business Day preceding the date of the applicable mandatory prepayment. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which On such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Datedate of prepayment, (Bi) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to that portion of the Term Loans then to be prepaid to the Term Loan Lenders (less the amount thereof that would otherwise be payable to Declining Lenders) shall be paid to the applicable Term Loan Lenders that are not Declining Lenders and (ii) an amount equal to that portion of such excessthe Term Loans that would otherwise be payable to Declining Lenders shall be applied, first to the prepayment of the Revolving Credit Obligations and Swing Loans and the cash collateralization of Letters of Credit, in each case on the basis provided in Section 2.9(c) above, and the Borrowers shall concurrently therewith deliver second, to the Administrative Agent a certificate signed extent there are proceeds remaining, to the Borrower for application for any purpose permitted by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.this Agreement (including any optional prepayment pursuant to Section 2.8 (
Appears in 1 contract
Sources: Credit Agreement (Knology Inc)
Mandatory Prepayments. The (a) Not later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Cash Proceeds in respect of any Specified Asset Sale, the Parent shall notify each Administrative Agent of such receipt. On the third Business Day following the receipt by the Parent or any Restricted Subsidiary of any Net Cash Proceeds in respect of any Specified Asset Sale, the Borrowers shall (i) first, prepay the Term Loans in an aggregate amount equal to the lesser of (x) such Net Cash Proceeds and (y) $750,000,000 in the aggregate under this clause (a)(i) since the Effective Date, (ii) second, prepay the Term Loans and the Revolving Loans then outstanding on a pro rata basis (calculated using the Specified Asset Sale Adjusted Term Loan Amount in lieu of the amount of Term Loans then outstanding and determined without giving effect to any declined prepayment by any holder of Term Loans) with such Net Cash Proceeds remaining after application in accordance with clause (a)(i), and (iii) third, to cash collateralize outstanding Revolving Letters of Credit and LC Facility Letters of Credit, on a pro rata basis, in the manner set forth in Section 9.3; provided that, so long as no Default or Event of Default shall have occurred and be continuing, the Parent may, with respect to any Specified Asset Sale the Net Cash Proceeds of which do not exceed $500,000,000.00, on or prior to the date of the required prepayment, deliver to the Administrative Agents a certificate of a Responsible Officer of the Parent certifying that the Parent intends to cause such Net Cash Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets that are used or useful in the business of the Parent and its Restricted Subsidiaries within 365 days after the receipt of such Net Cash Proceeds (or, if the Parent or such Restricted Subsidiary has entered into a binding commitment with respect to any such reinvestment within such 365-day period, the date, if later, that is 180 days after the date of such commitment) and certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case no prepayment of the Loans shall be required under this clause (a) with respect to the amount intended to be so reinvested as set forth in such certificate; provided further that any such Net Cash Proceeds that are not so reinvested by the end of such period shall be applied to prepay the Loans promptly upon the expiration of such period in accordance with this clause (a).
(b) Not later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary, or by any Agent as loss payee, of any Net Cash Proceeds in respect of any Insurance/Condemnation Event, the Parent shall notify each Administrative Agent of such receipt. On the third Business Day following the receipt by the Parent or any Restricted Subsidiary, or by any Agent as loss payee, of any Net Cash Proceeds in respect of any Insurance/Condemnation Event, the Borrowers shall prepay the Term Loans and thereafter cash collateralize outstanding Revolving Letters of Credit and LC Facility Letters of Credit in an aggregate amount equal to such Net Cash Proceeds in accordance with Section 2.12(h); provided that, so long as no Default or Event of Default shall have occurred and be continuing, the Parent may, on or prior to the date of the required prepayment, deliver to each Administrative Agent a certificate of a Responsible Officer of the Parent certifying that the Parent intends to cause such Net Cash Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets that are used or useful in the business of the Parent and its Restricted Subsidiaries (including through the repair, restoration or replacement of the damaged, destroyed or condemned assets) on or prior to the date that is 365 days after the receipt of such Net Cash CollateralizeProceeds (or, if the Parent or such Restricted Subsidiary has entered into a binding commitment with respect to any such reinvestment within such 365-day period, the date, if later, that is 180 days after the date of such commitment), and certifying that, as applicableof the date thereof, no Default or Event of Default has occurred and is continuing, in which case during such period the Borrowers shall not be required to make such prepayment to the extent of the amount intended to be so reinvested as set forth in such certificate; provided further any such Net Cash Proceeds that are not so reinvested by the end of such period shall be applied to prepay the Term Loans promptly upon the expiration of such period.
(c) Not later than the Obligations first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Cash Proceeds from the incurrence of any Indebtedness (including Permitted Term Refinancing Debt, but excluding any other Indebtedness permitted to be incurred pursuant to Section 8.1), the Parent shall notify each Administrative Agent of such receipt and the Borrowers shall prepay the Term Loans and thereafter cash collateralize outstanding Revolving Letters of Credit and LC Facility Letters of Credit in an aggregate amount equal to such Net Cash Proceeds in accordance with Section 2.12(h).
(d) In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2018), the Borrowers shall, not later than March 31 of the following Fiscal Year, prepay the Term Loans and thereafter cash collateralize outstanding Revolving Letters of Credit and LC Facility Letters of Credit in accordance with Section 2.12(h) in an aggregate principal amount equal to (i) 75% (or (A) 50% if the Secured Leverage Ratio as follows:of the end of such Fiscal Year shall have been equal to or less than 0.75:1.00 but greater than 0.50:1.00 or (B) 25% if the Secured Leverage Ratio as of the end of such Fiscal Year shall have been equal to or less than 0.50:1.00) of such Consolidated Excess Cash Flow; provided that at the option of the Parent, any voluntary prepayments of Term Loans (including prepayments at a discount to par offered to all Lenders under the Term Facility or under any Incremental Term Loan Facility, with credit given for the actual amount of the cash payment) made during such Fiscal Year or on or prior to March 31 of the following Fiscal Year (and without duplication in the next Fiscal Year) other than prepayments funded with the proceeds of incurrences of Long-Term Indebtedness, shall be credited against Consolidated Excess Cash Flow prepayment obligations on a dollar-for-dollar basis for such fiscal year (with the Secured Leverage Ratio for purposes of determining the applicable Consolidated Excess Cash Flow percentage above recalculated to give pro forma effect to any such cash pay down or reduction made during such time period); provided, further, that at the option of the Parent, any Capital Expenditures made during such Fiscal Year or on or prior to March 31 of the following Fiscal Year (and without duplication in the next Fiscal Year) shall reduce the calculation of Consolidated Excess Cash Flow for such Fiscal Year; provided, further, that any such Consolidated Excess Cash Flow prepayments shall be required only if the amount of prepayment exceeds $20,000,000.00.
(e) (i) If, at any time, the Effective Amount aggregate principal amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding LC Facility Outstandings exceeds the Total Revolving Loan Commitment aggregate LC Facility Commitments at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans within one Business Day provide cash collateral in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount respect of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur LC Facility Letter of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) 9.3 in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount 105% of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (a) On the date of any termination or Cash Collateralizereduction of the Revolving Credit Commitments, as applicable) and on any date that the Obligations as follows:
(i) If, at any time, the Effective Amount of all Total Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Exposure exceeds the Total Revolving Loan Commitment at such timeAmount, the Borrowers Borrower shall immediately pay or prepay so much of the Revolving Credit Borrowings and Swingline Loans, and then shall deposit cash collateral with the Administrative Agent for Letter of Credit Exposure in a manner consistent with the terms of Section 2.18(k), as shall be necessary in order that the Total Revolving Credit Exposure does not exceed the Total Revolving Commitment Amount.
(Ab) Upon the receipt of any Asset Sale Proceeds, Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and Equity Offering Proceeds, the Borrower shall prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in by an amount equal to the then Effective Amount 100% of the L/C Obligationssuch Asset Sale Proceeds, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds, and (B) the Maturity Date.
(iii) IfEquity Offering Proceeds, at any time provided, however, that, if IDSs are issued after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the a time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a no Default or Event of Default shall occurhave occurred and be continuing immediately before or after giving effect thereto and no Interest Deferral Period is in effect, then the Borrowers Borrower shall immediately (i) first deposit Equity Offering Proceeds from the issuance of such IDSs into the Cash Collateral Account to the extent of the Cash Collateral Shortfall Amount after giving effect to the new Holdings Subordinated Notes issued as a part of such IDSs and (ii) then prepay the outstanding Obligations by an amount equal to 50% of (A) the net cash proceeds of the new Holdings Subordinated Notes issued as part of such IDSs, less (B) the funds deposited in the amount and in the manner described in the first sentence Cash Collateral Account pursuant to clause (i) of this clause (iii)proviso, and Holdings and the Borrower shall be permitted to retain the balance; provided, further, however, that if Equity Offering Proceeds are raised other than from the issuance of additional IDSs at a time when no Default or Event of Default shall have occurred and be continuing immediately before or after giving effect to the event that gave rise to such Equity Offering Proceeds and no Interest Deferral Period is in effect, then the percentage of Equity Offering Proceeds required to be applied to the Obligations shall be reduced from 100% to 50%.
(ivc) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations During each Dividend Suspension Period (except when an Interest Deferral Period is also in the manner set forth in Section 2.06(deffect), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations on each Dividend Payment Date by an amount equal to 100% of the Distributable Cash for the Monthly Fiscal Period most recently ended for which a Monthly Report has been delivered.
(d) During each Interest Deferral Period, the Borrower shall prepay the Obligations on each Subordinated Note Interest Payment Date by an amount equal to (i) 75% of the interest payable on the Holdings Subordinated Notes but for the Interest Deferral Period, to the extent of Available Cash for the most recently ended Monthly Fiscal Period for which a Monthly Report has been delivered, plus (ii) 100% of the Distributable Cash for such Monthly Fiscal Period, measured as if no Interest Deferral Period had occurred and all interest payable on the Holdings Subordinated Notes was paid in cash.
(e) Upon the occurrence of an Event of Default, all or a portion of the funds in the manner Dividend/CapEx Funding Account, the CapEx Funding Account, the Cash Collateral Account and the Existing Subordinated Notes Cash Collateral Account shall, at the election of the Required Lenders with notice to the Administrative Agent, but without further notice or instruction to the Borrower, be applied by the Administrative Agent to the prepayment of the Obligations.
(f) Upon delivery of the annual audited financial statements of Holdings and its Subsidiaries pursuant to Section 5.4(c) for each Annual Fiscal Period, commencing with the Annual Fiscal Period 2004, the Borrower shall prepay the Obligations by an amount equal to 50% of the Annual Excess Cash Flow for such Annual Fiscal Period; provided, however, that if no Event of Default has occurred and is continuing, no Interest Deferral Period is in effect and the Borrower is in compliance with the financial ratios set forth in Section 2.06(d) in 6.18 as of the last day of such Annual Fiscal Period and the most recently ended Monthly Fiscal Period for which the Borrower is required to have delivered a Monthly Report, then the Borrower shall prepay the Obligations by an amount equal to the aggregate amount 50% of the sum excess, if any, of (i) the Annual Excess Cash Flow for such excess or such increase in such excess. Notwithstanding Annual Fiscal Period over (ii) the foregoingamount, if any, deposited into the Borrower shall not be required to make a prepayment CapEx Funding Account pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds Section 2.22 for such Annual Fiscal Period; provided, further, however, that if the Borrower advises withdraws any funds from the Administrative Agent in writing within four (4) Business Days CapEx Funding Account other than to make Capital Expenditures promptly after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occurwithdrawal, then the Borrower shall immediately prepay the Obligations by an amount equal to 50% of the funds so withdrawn from the CapEx Funding Account.
(g) All prepayments of the Obligations required in clauses (b) through (f) above shall be applied ratably to the Term Notes (subject to the provisions of paragraph (i) below), the related Term Note Make-Whole Amount (if an Event of Default has occurred and is continuing or an Interest Deferral Period is in effect) and the outstanding Obligations Revolving Credit Exposure; the Revolving Credit Commitments shall not be reduced as a result of prepayments under clauses (b) through (f) unless an Event of Default has occurred and is continuing, in which case the prepayment amount allocated to the Revolving Credit Exposure shall result in a concurrent reduction in the amount Revolving Credit Commitments (unless otherwise agreed by the Required Revolving Lenders). Any prepayments applied to Revolving Credit Exposure shall be allocated first to repay Swingline Loans, then to repay Revolving ABR Loans, then to repay Revolving Eurodollars Loans and then to cash collateralize Letter of Credit Exposure in the manner described in Section 2.18.
(h) Upon receipt of any proceeds or any Annual Excess Cash Flow referred to in clauses (b) through (f), the first Administrative Agent shall notify the Lenders of the receipt of such proceeds on the Business Day such proceeds are received, together with the calculation of Term Note Make-Whole Amount, if appropriate, and each Lender's pro rata share of such prepayment (the "Prepayment Notice"), and except as provided in paragraph (i) below, shall promptly apply such proceeds in the manner set forth in paragraph (g) above. All prepayments under this Section 2.10 shall be accompanied by accrued interest on the principal amount being prepaid to but excluding the date of payment. Each prepayment of Term Notes required under this Section 2.10 when an Event of Default has occurred and is continuing or during an Interest Deferral Period shall be accompanied by the corresponding Term Note Make-Whole Amount determined with respect to the amount so prepaid. All prepayments and reductions under this Section 2.10 shall be without premium or penalty except as contemplated in the preceding sentence and pursuant to Section 2.13.
(i) If no Event of this clause Default has occurred and is continuing and no Interest Deferral Period is in effect, each Term Lender shall have the right not to accept its ratable share of any prepayment (va "Waivable Prepayment") and shall be deemed to have exercised such right unless it gives written notice to the Borrower and the Administrative Agent of its election to accept its ratable share of such Waivable Prepayment no later than five (5) Business Days after the Administrative Agent delivers the Prepayment Notice. To the extent that any Term Lender elects not to accept its ratable share of a Waivable Prepayment, such share of the Waivable Prepayment shall be offered ratably to the other Term Lenders that have accepted their share of such Waivable Prepayment and the Revolving Lenders based upon their Revolving Credit Exposure (with no reduction in the Revolving Credit Commitments). If no Event of Default has occurred and is continuing and no Interest Deferral Period is in effect, the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held application of any prepayment by the Administrative Agent as collateral. No right shall be made on the earlier of (i) the sixth Business Day immediately following delivery of the Prepayment Notice to apply proceeds to repair, restoration the Lenders and (ii) the date that all Term Lenders have notified the Administrative Agent in writing of whether they accept or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before reject their portion of the Maturity DateWaivable Prepayment.
(vij) The Borrowers shall deliver Revolving Credit Exposure of the Lenders is subject to reduction to zero during at least one consecutive thirty (30) day period during each Annual Fiscal Period beginning with the 2004 Annual Fiscal Period (the "Annual Clean-Up"); provided, however, that (a) any amounts advanced prior to the Administrative Agent, at the time commencement of each prepayment required under this Section 2.06(c)an Annual Clean-Up to fund Consolidated Service Contract Capital Expenditures may remain outstanding during an Annual Clean-Up, (Ab) a certificate signed by the chief financial officer any Letters of Credit outstanding as of the Borrowers setting forth in reasonable detail the calculation commencement of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments Annual Clean-Up shall be permanently reduced) in an amount equal permitted to remain outstanding during the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Annual Clean-Up,
Appears in 1 contract
Sources: Credit Agreement (Volume Services America Holdings Inc)
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, if an Event of Default has occurred and is continuing, Cash Collateralize the Obligations in an amount equal to 105% of the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers Borrower shall repay each Swing Line Loan on the earlier to occur of (A) the second Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Revolving Loan Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007)Date, any Loan Party sells or otherwise disposes of any assets (other than (x) sales made in the ordinary course of business and (y) other sales permitted under Sections Section 5.02(c) (excluding Section 5.02(c)(v)(I) with respect to the asset sales only and Section 5.02(c)(xiii) thereof))) in any single transaction or series of related transactions and the Net Proceeds from such sale or disposition exceed $2,500,000, the Borrowers Borrower shall, immediately not later than thirty (30) days after the completion of each such sale or other disposition, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five one hundred percent (85100%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iiiSection 2.06(c)(iii) with respect to any sale or other disposition (a “Relevant Sale”) if the Borrowers advise Borrower advises the Administrative Agent in writing at within thirty (30) days after the time the Net Proceeds from completion of each such Relevant Sale are received that the applicable Borrower Loan Party intends to reinvest all or any portion of such Net Proceeds in replacement productive assets used in the business of the Loan Parties to the extent (A) the reinvestment in such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement productive assets occurs within 270 days from twelve (12) months after the date of such Relevant Sale, or, if the applicable Loan Party enters into a binding commitment during such twelve (12) month period, within 180 days after the expiration of such twelve (12) month period. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period periods provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or an Event of Default described in Section 6.01(a), (f) or (g) shall occur, then the Borrowers Borrower shall immediately prepay (or Cash Collateralize, as applicable), the outstanding Loans and other Obligations in the amount and in the manner described in the first sentence of this clause (iiiSection 2.06(c)(iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers Borrower shall, immediately after such issuance or incurrence, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) If, at any time after the Closing Date, any Loan Party issues or sells any Equity Securities or receives any equity capital contribution from any other Person (other than through the issuance of (x) Equity Securities by any Loan Party to another Loan Party, (y) the contribution of capital by any Loan Party to another Loan Party or (z) any Equity Interest of any Person (A) pursuant to any employee stock or stock option compensation plan, (B) to the management of the target of a Permitted Acquisition by way of “roll-over” equity or pursuant to new subscription by such management or (C) the proceeds of such issuance are used to pay the purchase price of a pending Permitted Acquisition; provided that if (a) such Net Proceeds are not used to pay the purchase price of such Permitted Acquisition and (b) such Net Proceeds are not used to pay the purchase price of one or more other Permitted Acquisitions or used to make Investments permitted by this Agreement, in each case, within one (1) year after such Net Proceeds arise, such Net Proceeds shall be used to make prepayments subject to this Section 2.06(c)(v) without giving effect to this parenthetical) and receives aggregate Net Proceeds from all such issuances and sales of Equity Securities and such equity capital contributions in excess of $35,000,000, the Borrower shall, within (5) Business Days receipt of such Net Proceeds, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to the following applicable percentage of such aggregate Net Proceeds in excess of $35,000,000: (I) twenty five percent (25%) (when the Total Leverage Ratio as of the last day of the most recent fiscal quarter for which the Borrower has delivered Holdings’ Financial Statements is greater than or equal to 2.25:1.00), (II) ten percent (10%) (when the Total Leverage Ratio as of the last day of the most recent fiscal quarter for which the Borrower has delivered Holdings’ Financial Statements is greater than or equal to 2.00:1.00 but less than 2.25:1.00) and (III) zero percent (0%) (when the Total Leverage Ratio as of the last day of the most recent fiscal quarter for which the Borrower has delivered Holdings’ Financial Statements is less than 2.00:1.00).
(vi) Not later than four thirty (430) Business Days following days after the date of receipt (each a the “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security TrusteeAgent) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, which exceed $25,000,000 for such calendar year2,500,000 in connection with a particular circumstance or event, the Borrower shall prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess Net Insurance Proceeds or such increase in such excessNet Condemnation Proceeds. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (vSection 2.06(c)(vi) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days 30 days after the related Receipt Date that it or another Loan Party intends to (x) repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds were derived or (y) invest in productive assets used in the business of the Loan Parties, to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration restoration, replacement or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement investment is completed within 270 days twelve (12) months after the related Receipt Date or, if the applicable Loan Party enters into a binding commitment during such twelve (12) month period, within one hundred and eighty (C180) days after the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost expiration of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faithtwelve (12) month period. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period applicable periods provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) abovereplacement, or an Event of Default described in Section 6.01(a), (f) or (g) shall occur, then the Borrower shall immediately prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the amount and in the manner described in the first sentence of this clause (vSection 2.06(c)(vi). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vivii) The Borrowers Borrower shall deliver to the Administrative Agent, at the time of each prepayment (or Cash Collateralization, as applicable) required under this Section 2.06(c), (A) a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment (or Cash Collateralization, as applicable) and (B) to the extent practicable, at least three days prior written notice of such prepaymentprepayment (or Cash Collateralization, as applicable). Each notice of prepayment (or Cash Collateralization, as applicable) shall specify the prepayment (or Cash Collateralization, as applicable) date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers Borrower shall subsequently determine that the actual amount required to be prepaid (or Cash Collateralized, as applicable) was greater than the amount set forth in such certificate, the Borrowers Borrower shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) and/or deliver additional Cash Collateral in an amount equal to the amount of such excess, and the Borrowers Borrower shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrower demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as followsRequirements:
(i) If, at If on any time, date (after giving effect to any other repayments or prepayments on such date) the Effective Amount sum of all (i) the aggregate outstanding principal amount of Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Swingline Loans plus (ii) the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such timeas then in effect, the Borrowers Borrower shall immediately (A) prepay the Swing Line repay on such date that principal amount of Swingline Loans to the extent Swing Line and, after Swingline Loans have been paid in a sufficient amount are then outstandingfull, (B) then prepay the Unpaid Drawings and, after Unpaid Drawings have been paid in full, Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C ObligationsLoans, in an aggregate principal amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans, Unpaid Drawings and Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in effect (any such excess, a “Total Revolving Commitment Excess Amount”), the Borrower shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents equal to such Total Revolving Commitment Excess Amount, and the Administrative Agent shall hold such payment as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent and the Borrower which shall permit certain investments in Cash Equivalents satisfactory to the Administrative Agent and the Borrower, until the proceeds are applied to the Obligations, and which shall provide that a portion of the balance, if any, held in a cash collateral account established under such cash collateral agreement equal to the amount by which such balance exceeds the Total Revolving Commitment Excess Amount from time to time, shall be released to the Borrower, provided that (x) as a result of such release, a mandatory prepayment shall not be required under the first sentence of this paragraph (a)(i) unless such prepayment is made concurrently with such release, and (y) immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing or would result from such release.
(ii) The Borrowers Borrower shall be required to repay each Swing Line Loan the principal amount of the Term Loans on the earlier to occur last day of (A) March, June, September and December of each year and on the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Term Facility Final Maturity Date., commencing June 30, 2012 (each such repayment, a “Term Loan Scheduled Repayment”), each such installment on any such date to be in the amount set forth below opposite such date: Date Installment Amount June 30, 2012 $1,875,000 September 30, 2012 $1,875,000 December 31, 2012 $1,875,000 March 31, 2013 $1,875,000 June 30, 2013 $3,750,000 September 30, 2013 $3,750,000 December 31, 2013 $3,750,000 March 31, 2014 $3,750,000 June 30, 2014 $3,750,000 September 30, 2014 $3,750,000 December 31, 2014 $3,750,000 March 31, 2015 $3,750,000 June 30, 2015 $3,750,000 September 30, 2015 $3,750,000 December 31, 2015 $3,750,000 March 31, 2016 $3,750,000 Term Facility Final Maturity All amounts outstanding in Date respect of the Term Loans
(iii) IfOn or before the third Business Day following the date of receipt thereof by Holdings or any of its Subsidiaries of the Cash Proceeds from any Asset Sale or Recovery Event, at any time after an amount equal to 100% of the Closing Date during any calendar year (including 2007)Net Cash Proceeds then received from such Asset Sale or Recovery Event shall be applied as a mandatory repayment of principal of the then outstanding Term Loans, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, provided that Net Cash Proceeds from Recovery Events in an aggregate principal amount equal not to eighty-five percent (85%) of the Net Proceeds from exceed $75,000,000 in any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers Fiscal Year shall not be required to make be used to so repay Term Loans to the extent the Borrower elects, as hereinafter provided, to cause such Net Cash Proceeds to be reinvested in Reinvestment Assets (a prepayment pursuant “Reinvestment Election”) on or prior to the Reinvestment Prepayment Date; provided, further, that if any such Net Cash Proceeds are not so reinvested on or prior to the Reinvestment Prepayment Date, such Net Cash Proceeds shall promptly thereafter be applied toward prepayments of the Term Loans in accordance with this clause Section 5.2. The Borrower may exercise its Reinvestment Election (iiiwithin the parameters specified in the preceding sentence) with respect to any sale a Recovery Event, if (x) the Reinvestment Test is satisfied on the date of delivering the Reinvestment Notice referred to below and (y) the Borrower delivers a “Relevant Sale”) if the Borrowers advise Reinvestment Notice to the Administrative Agent in writing at by the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from third Business Day following the date of such Relevant Sale and (B) Recovery Event, with such Reinvestment Election being effective with respect to the acquisition Net Cash Proceeds of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior Recovery Event equal to the acquisition of the related replacement assets, the 90 or 270-day period provided Anticipated Reinvestment Amount specified in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)such Reinvestment Notice.
(iv) IfOn or before the third Business Day following the date of the receipt thereof by Holdings and/or any of its Subsidiaries, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent 100% of the cash proceeds (100%net of reasonable and documented underwriting discounts and commissions, other banking and investment banking fees, attorneys’, advisors’, consultants’ and accountants’ fees) of the Net Proceeds incurrence of such IndebtednessIndebtedness by Holdings and/or any of its Subsidiaries (other than Indebtedness permitted by ), shall be applied as a mandatory repayment of principal of the then outstanding Term Loans.
(v) Not later than four (4) Business Days following On the date of receipt (each Reinvestment Prepayment Date with respect to a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)Reinvestment Election, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate Reinvestment Prepayment Amount, if any, for such Reinvestment Election shall be applied as a repayment of the principal amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateTerm Loans.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
(i) If, If at any time, time the Effective Amount aggregate outstanding principal balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Advances (including Sterling Overdrafts) made hereunder exceeds the Total Maximum Revolving Loan Commitment at such timeCredit Amount, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans repay to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in Bank an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(iib) All proceeds of accounts receivable of the Borrower shall be applied to reduce the Sterling Overdraft and the Revolving Credit Advances and such proceeds shall be applied first to reduce the Sterling Overdraft.
(c) The Borrowers shall repay each Swing Line Borrower will make all required principal payments on the Term Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Datedates when due.
(iiid) IfThe Borrower shall, at on the date of receipt of Net Cash Proceeds by the Borrower or any time after of its Subsidiaries, except for Net Cash Proceeds received by any Guarantor to which the Closing Date during any calendar year provisions of Section 4.1(d) of the Domestic Credit Agreement apply, from (including 2007)i) the sale, any Loan Party sells lease, transfer or otherwise disposes other disposition of any assets of the Borrower or any of its Subsidiaries (other than sales Net Cash Proceeds from a transaction permitted under Sections 5.02(c)Section 9.5), (ii) the Borrowers shallincurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness for borrowed money, immediately after except for Bank Obligations, and (iii) the completion of each sale or issuance by the Borrower or any of its Subsidiaries of any capital stock or other dispositionownership or profit interest or any warrants, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal options or rights to eighty-five percent acquire capital stock or other ownership or profits interest (85%) of the other than Net Cash Proceeds from any such sale or disposition; provided that so long issuance which described as the cash portion one of its purposes undertaking acquisitions if such Net Cash Proceeds are used to finance any transaction permitted under Section 9.7 within ninety (90) days of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion receipt of such Net Cash Proceeds at by the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (ABorrower)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Term Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excessNet Cash Proceeds; provided, however, that such -------- ------- amounts may at the request of the Borrower be held as cash Collateral by the Bank, in a separate account with the Bank, accruing interest at the Bank's normal deposit rate for deposits of like amount and duration, until the Borrowers end of existing Interest Periods, at which time such prepayment shall concurrently therewith deliver occur. Partial prepayments of the Term Loan under this Section 4.1(d) shall be applied to the Administrative Agent a certificate signed by the chief financial officer scheduled principal payments in inverse order of the Borrowers demonstrating the derivation of the additional amount resulting in such excessmaturity.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) On the date of receipt by the Borrower or any Subsidiary of any Net Proceeds with respect to an Asset Disposition which would cause the aggregate consideration for Asset Dispositions consummated by the Borrower or any Subsidiary during the current fiscal year to exceed $1,000,000 (or, if an Event of Default has occurred and is continuing, upon the consummation of any Asset Disposition), the Borrower shall prepay the Loans (or and such prepayment shall be applied as set forth in Section 2.4(c) below and, after all Loans have been prepaid, make a Cash CollateralizeCollateral Deposit, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to 100% of such Net Proceeds. On or prior to the then Effective Amount date of any Asset Disposition, the L/C Obligations, Borrower agrees to provide the Lender with calculations used by the Borrower in an aggregate principal determining the amount equal to of any such excessprepayment under this Section 2.4(a).
(iib) The Borrowers shall repay each Swing Line Loan on If the earlier to occur Borrower or any Subsidiary receives insurance proceeds or condemnation proceeds aggregating more than $250,000 (or in any amount after the occurrence and during the continuance of (Aa Default) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if Collateral which are not fully applied toward the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all repair or any portion replacement of such Net Proceeds in replacement assets to damaged or condemned Collateral by the extent earlier of (Ai) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for 120 days after the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale receipt thereof and (Bii) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearDefault, the Borrower shall prepay the outstanding Obligations in the manner Loans (and such prepayment shall be applied as set forth in Section 2.06(d2.4(c) below) and, after all Loans have been prepaid, make a Cash Collateral Deposit in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation 100% of the amount of such prepayment and (B) to proceeds not so applied. The Borrower shall give the extent practicable, at least three days prior Lender prompt written notice of all insurance and condemnation proceeds received with respect to any Collateral by it or any Subsidiary on or after the Closing Date in excess of $50,000 per occurrence.
(c) Each prepayment pursuant to this Section 2.4 shall be applied first, to the outstanding principal balance of the Loans, and second, to make a Cash Collateral Deposit with respect to outstanding Letters of Credit. Each prepayment shall be accompanied by payment in full of all accrued interest and, if applicable, accrued commitment fees thereon to and including the date of such prepayment, together with any additional amounts owing pursuant to Section 2.14 hereof. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, shall permanently reduce the Aggregate Revolving Loan Commitments shall be permanently reduced) Commitment in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessprepayment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Seracare Life Sciences Inc)
Mandatory Prepayments. The Borrowers (a) Upon the consummation of any Asset Disposition after July 15, 1997, or upon receipt by any Loan Party of any Liquidating Distribution after July 15, 1997, in each case within three hundred sixty (360) days after the Borrower or any of its Subsidiaries receives any Net Sale Proceeds, the Borrower shall prepay the outstanding Loans in an amount equal to 100% of the amount of such Net Sale Proceeds, in accordance with the provisions of Section 2.13; provided, however, that such Net Sale Proceeds which the Borrower or such Subsidiary shall, within three hundred sixty (360) days after the receipt thereof, use to reinvest in the business of the Borrower or Cash Collateralizeits Subsidiaries, shall not be included in determining the aggregate Net Sale Proceeds for such period; provided further that, if an Event of Default shall have occurred and be continuing on the date such Net Sale Proceeds are received by the Borrower or any of its Subsidiaries or at any time during such applicable three hundred sixty day period, then the Borrower shall prepay the outstanding Loans in 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 after July 15, 1997, 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 Obligations Leverage Ratio as follows:
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) Ifof 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 after July 15, 1997, on which the Borrower or any of its Subsidiaries receives any Net Debt Proceeds, becomes or remains liable with respect to Indebtedness with respect to Capitalized Leases in excess of $130,000,000 in the aggregate at any timeone time outstanding for the Borrower and its Subsidiaries, or assumes any Indebtedness in connection with a Permitted Acquisition pursuant to Section 7.2(l), the Effective Amount Borrower shall prepay the outstanding Loans in an amount equal to 100% of all such Net Debt Proceeds, 100% of the amount by which the aggregate amount of Indebtedness of the Borrower and its Subsidiaries with respect to Capitalized Leases exceeds $130,000,000 on such date or 100% of the aggregate principal amount of any such Indebtedness assumed in connection with a Permitted Acquisition, respectively, in accordance with the provisions of Section 2.13.
(d) On each day on which the Total Revolving LoansLoan Commitment is reduced pursuant to Section 2.10, Swing Line the Borrower shall prepay the Revolving Loans to the extent, if any, that the outstanding principal amount of the Revolving Loans exceeds such reduced Total Revolving Loan Commitment.
(e) If at any time and for any reason the aggregate principal amount of Revolving Loans plus the L/C Obligations then outstanding exceeds are greater than the Total Revolving Loan Commitment, the Borrower shall immediately prepay the Revolving Loans in an amount equal to such excess. In addition, to the extent 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 Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the L/C Obligations in an amount equal to the then Effective Amount of the amount by which such L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in exceed the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of Total Revolving Loan Commitment and such repair, restoration or replacement and the aggregate principal amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateRevolving Loans.
(vif) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under Nothing in this Section 2.06(c2.12 shall be construed to constitute the Lenders' consent to any transactions referred to in Sections 2.12(a), (A2.12(b) a certificate signed or 2.12(c) above which transaction is not expressly permitted by the chief financial officer terms of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessthis Agreement.
Appears in 1 contract
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Phase I Closing Date, any Loan Party Borrower issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures debentures, or other similar instruments but excluding Permitted Indebtedness, the Borrowers Borrower shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d2.3(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness, unless otherwise waived in writing by ▇▇▇▇▇▇.
(vii) If, at any time after the Phase I Closing Date, Borrower issues or sells any Equity Securities or receives any capital contributions, Borrower shall, immediately after such issuance or sale of Equity Securities or receipt of such capital contributions, prepay the outstanding Obligations in the manner set forth in Section 2.3(d), in each case, in an aggregate principal amount equal to One Hundred Percent (100%) of the Net Proceeds realized or received by Borrower or any Subsidiary of Borrower from such sale or issuance, unless otherwise waived in writing by ▇▇▇▇▇▇; provided, that, in any event, prior to undertaking any sale or issuance of any Equity Securities as described in this Section 2.3(c)(ii), Borrower must provide Lender at least thirty (30) Business Days written notice of such proposed sale or issuance.
(iii) Not later than four ten (410) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party Borrower (or the Administrative Agent or the Security TrusteeLender) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)Proceeds, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d2.3(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excessNet Insurance Proceeds and Net Condemnation Proceeds. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (viii) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent Lender in writing within four ten (410) Business Days after the related Receipt Date that it or another Loan Party Borrower intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds were derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party Borrower and the relevant counterparty(ies) within 90 ninety (90) days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.,
Appears in 1 contract
Sources: Credit Agreement
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeBorrower or any Subsidiary receives net cash proceeds from an Asset Sale, the Borrowers issuance of Indebtedness for borrowed money (other than Permitted Indebtedness) or termination or unwinding of any Swap Agreements or other hedge positions, and an Event of Default has occurred and is continuing, then the Borrower shall immediately (A) promptly use all of such net cash proceeds, after the prepayment in full of any amounts outstanding under the ABL Facility, to prepay the Swing Line Loans Borrowings and if any excess remains after prepaying all of the Borrowings, pay to the extent Swing Line Loans in a sufficient amount are then outstanding, (BAdministrative Agent on behalf of the Lenders such excess; provided that no such prepayment shall be required pursuant to this Section 3.04(d)(i) then prepay the Revolving Loans with respect to the extent Revolving Loans portion of any net cash proceeds from the sale, transfer or other disposition of Property that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in a sufficient amount assets useful for its business within twelve (12) months following receipt of such net cash proceeds (and, in the case of any commitment to reinvest, so reinvest within six (6) months after the end of such twelve (12) month period); provided that if any net cash proceeds are then not so reinvested by the deadline specified above and not otherwise used in the prepayment in full of any amounts outstanding and (C) otherwiseunder the ABL Facility, Cash Collateralize the Obligations in an amount equal to 100% of any such net cash proceeds shall be applied to the then Effective Amount prepayment of the L/C Obligations, Borrowings as set forth in an aggregate principal amount equal to such excessthis Section 3.04.
(ii) The Borrowers Each prepayment of Borrowings pursuant to this Section 3.04(d) shall repay be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each Swing Line Loan on such Eurodollar Borrowing in order of priority beginning with the earlier to occur Eurodollar Borrowing with the least number of (A) days remaining in the Swing Line Settlement Date occurring after such Swing Line Loan is made Interest Period applicable thereto and (B) ending with the Maturity DateEurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Prepayments pursuant to this Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash3.04(d) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets accompanied by accrued interest to the extent (A) such Net Proceeds are in fact committed to be reinvested required by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Section 3.02.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at after giving effect to any timetermination or reduction of the Aggregate Maximum Credit Amount pursuant to Section 2.07 or any reduction of the Aggregate Elected Commitment Amount pursuant to Section 2.07, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding total Credit Exposures exceeds the Total Revolving Loan Commitment at total Commitments, then the Borrower shall make a prepayment in accordance with Section 3.04(c)(v) on the date of such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, termination or reduction in an aggregate principal amount equal to such excess.
(ii) The Borrowers If a Borrowing Base Deficiency results from or exists immediately after any adjustment of the Borrowing Base due to a Scheduled Redetermination or Interim Redetermination, then within thirty (30) days of the effective date of such new Borrowing Base, the Borrower shall repay each Swing Line Loan on the earlier elect to occur of (A) prepay the Swing Line Settlement Date occurring after Loans in an aggregate principal amount equal to such Swing Line Loan is made and Deficiency Amount, (B) pay such Deficiency Amount in six (6) equal installments, the first such installment being due and payable by the first Business Day after such election has been made and the remaining installments due monthly thereafter until such Deficiency Amount is paid in full, (C) provide and pledge as Mortgaged Properties additional Oil and Gas Properties acceptable to the Administrative Agent and the Lenders in their sole discretion (together with title information with respect thereto as may be required to maintain compliance with Section 8.13(a)) to increase the Borrowing Base by an amount at least equal to such Borrowing Base Deficiency or (D) effect any combination of the foregoing clauses (A), (B) and (C) in amounts necessary to eliminate such Borrowing Base Deficiency; provided, that all payments under this Section 3.04(c)(ii) must be made prior to the Maturity Date.
(iii) If, at If a Borrowing Base Deficiency results from or exists immediately after any time after adjustment to the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (Borrowing Base other than sales permitted under Sections 5.02(c))pursuant to any Scheduled Redetermination or Interim Redetermination, then the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration Borrower shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from on the date of such Relevant Sale and (B) the acquisition of adjustment in an aggregate amount equal to such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Deficiency Amount.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, Each payment made pursuant to this Section 3.04(c) shall be used to prepay the outstanding Obligations Borrowings, and if any Borrowing Base Deficiency remains after prepaying all of the Borrowings as a result of an LC Exposure, such excess shall be paid to the Administrative Agent on behalf of the Lenders to be held as cash collateral as provided in Section 2.09(j). Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, to any Swingline Loans then outstanding, second, ratably to any ABR Borrowings then outstanding, and, third, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the manner set forth Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such IndebtednessInterest Period applicable thereto.
(v) Not later than four (4) Business Days following the date Each prepayment of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment Borrowings pursuant to this clause (vSection 3.04(c) with respect shall be applied ratably to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises Loans included in the Administrative Agent in writing within four (4prepaid Borrowings. Prepayments pursuant to this Section 3.04(c) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived shall be accompanied by accrued interest to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed required by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateSection 3.02.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) Except as described in Section 2.4.1(b) below, if the Mortgaged Property or the Property Owner’s interest therein is sold, transferred or otherwise disposed of, voluntarily or involuntarily (other than as permitted by Section 6.1(h) below), or if the Lien of the Senior Loan Documents is released from the Mortgaged Property, then, not later than the closing date or effective date of such sale, transfer, disposition or release, the Borrower shall prepay repay the Loan, in full, together with interest thereon through the date of such prepayment, the applicable IRR Amount and the Make-Whole Amount (if such prepayment occurs during the Lock-Out Period).
(b) If there shall occur a Casualty or Cash CollateralizeCondemnation in respect of the Mortgaged Property at any time after the initial funding under the Senior Loan and as a result thereof the Senior Loan is prepaid in whole or in part, then, to the extent that there shall be excess proceeds or awards available to either the Property Owner or the Borrower following the application of such proceeds or awards pursuant to the terms of the Senior Loan Documents, the Borrower shall apply the amount of such available excess proceeds or awards first, to any outstanding default interest, fees, late charges or other costs due and owning to the Agent and/or the Lenders; second, to any accrued and unpaid interest on the Loan at the Applicable Interest Rate or the Minimum Funding Rate, as applicable) the Obligations as follows:
(i) If; third, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingapplicable IRR Amount; fourth, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwiseprincipal balance of the Loan; fifth, Cash Collateralize to the Obligations Borrower in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal Required Equity plus a return on such amount equal to the aggregate percentage return paid to the Lenders pursuant to clauses second and third above; sixth, to the Make-Whole Amount then due (if any) and seventh, the remainder of such excessproceeds, if any, to the Borrower. Payments required under this subsection (b) shall be due on the first Interest Payment Date occurring after the determination under the Senior Loan Agreement that the related proceeds or awards will be applied to the Senior Loan.
(iic) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, If at any time after the Closing Date during any calendar year Agent reasonably determines that the ratio of (including 2007), any x) the sum of the outstanding balance of the Loan Party sells or otherwise disposes and the maximum amount of any assets the Senior Loan for which the Property Owner then qualifies to (other than sales permitted under Sections 5.02(c)), y) the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations Construction Costs as reflected in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85Approved Construction Budget exceeds 82%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loan in an amount equal sufficient to the aggregate amount of reduce such ratio to 82%. If at any time the sum of such excess or such increase in such excess. Notwithstanding outstanding balance of the foregoingLoan and the amount outstanding under the Senior Loan exceeds $290,000,000, the Borrower shall not be required prepay the Loan in an amount sufficient to make a prepayment pursuant reduce such sum to this clause $290,000,000. The Borrower shall pay the applicable IRR Amount and Make-Whole Amount (vif any) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited connection with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c2.4.1(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Mezzanine Construction Loan Agreement (Prime Group Realty Trust)
Mandatory Prepayments. The Borrowers shall prepay (a) If Indebtedness is incurred by any Group Member (other than Indebtedness permitted under Section 6.3), then on the date of such issuance or Cash Collateralizeincurrence, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount 100% of the L/C ObligationsNet Proceeds thereof shall be applied to the prepayment of the Senior Lien Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(f). The provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by any Group Member.
(b) If on any date there shall be any Excess Proceeds, in and the aggregate amount of such Excess Proceeds shall exceed $100.0 million, then no later than 20 days thereafter and subject to Section 2.14(i), an aggregate principal amount equal to 100% of the amount of such excessExcess Proceeds (not only the amount in excess of $100.0 million) shall be applied to the prepayment of the Senior Lien Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(f).
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date and subject to Section 2.14(i), 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 2.14(f). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (x) 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 to be made, are required to be delivered to the Lenders and (y) the date such financial statements are actually delivered.
(d) [Reserved].
(e) The Borrowers Borrower shall repay each Swing Line Loan apply, on a dollar-for-dollar basis, all of the Net Proceeds of any Replacement Term Loans and the Net Proceeds of any Permitted Refinancing Indebtedness (that is incurred to refinance Term Loans) to the repayment of Term Loans to be repaid from such Net Proceeds on the earlier date such Net Proceeds are received. Any such prepayment of Term Loans of a Class shall be paid ratably to occur 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).
(f) 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 Eurodollar Loans of such Class; provided, however, that the Borrower may elect (except in the case of a prepayment pursuant to Section 2.14(e)) 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 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 Swing Line Settlement Date occurring after rate otherwise applicable under this Annex to the Eurodollar Loan in respect of which such Swing Line Loan is made deposit was made, until such amounts are applied to prepay such Eurodollar Loan, and (B) the Maturity Date.
(iiix) If, at any time after the Closing Date during any calendar year (including 2007)while a Specified Default has occurred and is continuing, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale may, and (By) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or 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 the payment of Eurodollar Loans.
(g) Notwithstanding anything in this Section 2.14 to the contrary, if any amount shall occurbe required to be applied to prepay Senior Lien Term Loans pursuant to clauses (a), (b) or (c) above (such amount, the “Required Prepayment Amount”), and at the time that any such prepayment would be required, the Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be, or to be offered to be, so repurchased, redeemed, prepaid or repaid, “Other Applicable Indebtedness”), then the Borrowers Borrower may apply such Required Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Senior Lien Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall immediately not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Senior Lien Term Loans in accordance with the terms hereof) to the prepayment of the Senior Lien Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Senior Lien Term Loans that would have otherwise been required pursuant to this Section 2.14 shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness so repurchased or repaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection, or, if later, the date on which the portion of the Required Prepayment Amount allocated to the Senior Lien Term Loans are applied to prepayment of the Senior Lien Term Loans) be applied to prepay the outstanding Obligations Senior Lien Term Loans in accordance with the terms hereof (to the extent such amount and in the manner described in the first sentence of this clause (iiiwould otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(ivh) If, at any time after Notwithstanding anything in this Section 2.14 to the Closing Datecontrary, any Senior Lien Term Loan Party issues or incurs any Indebtedness for borrowed moneyLender (and, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, to the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations extent provided in the manner set forth in Section 2.06(d)applicable Permitted Amendment, in each caseany other Term Loan Lender) may elect, in an aggregate principal amount equal by notice to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or by telephone (confirmed by hand delivery, facsimile or, in accordance with the Security Trusteesecond paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all of any mandatory prepayment of its Term Loans pursuant to clauses (b) and (c) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar yearthis Section 2.14, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to which case the aggregate amount of the sum of prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the Group Members (such excess or such increase in such excess. declined amounts to the extent retained by the Group Members, the “Declined Proceeds”).
(i) Notwithstanding the foregoing, all prepayments referred to in clauses (b) and (c) above are subject to permissibility of upstreaming the applicable cash flow or cash proceeds under (i) local law (e.g. 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 the directors of the relevant subsidiaries) and (ii) material organizational document restrictions as a result of minority ownership. Further, if the Borrower shall not determines in good faith that any Group Member would incur a material adverse tax liability (taking into account, for the avoidance of doubt, any applicable withholding taxes), if all or a portion of the cash flow or cash proceeds referred to above attributable to a Foreign Subsidiary were repatriated (a “Restricted Amount”), the amount that the Borrower will be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if mandatorily prepay shall be reduced by the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which Restricted Amount until such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and time as the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) restricted subsidiary may upstream or transfer such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of Restricted Amount without incurring such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datetax liability.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (T-Mobile US, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount aggregate outstanding balances of the Revolving Loan plus all Revolving Loans, Swing Line Loans and L/C Obligations amounts owing by any Credit Party under the Pre-Petition Credit Agreement or any of the loan documents or instruments entered into in connection therewith (other than for purposes of providing cash collateral with respect to the Existing Letters of Credit) then outstanding exceeds exceed the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Maximum Amount and (B) the Maturity Date.
(iii) IfBorrowing Base, at Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances and amounts owing by any time Credit Party under the Pre-Petition Credit Agreement then outstanding to the extent required to eliminate such excess. If any such excess remains after repayment in full of the Closing Date during aggregate outstanding Revolving Credit Advances and all amounts owing by any calendar year (including 2007), Credit Party under the Pre-Petition Credit Agreement or any Loan Party sells of the loan documents or otherwise disposes of any assets instruments entered into in connection therewith (other than sales permitted under Sections 5.02(c))for purposes of providing cash collateral with respect to the Existing Letters of Credit) then outstanding, Borrowers shall provide cash collateral for the Borrowers shall, immediately after the completion Letter of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)Annex B to the extent required to eliminate such excess. If no Event of Default shall have occurred and be continuing, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale all or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash a portion of such Net Proceeds cash collateral shall be returned to Borrowers at such time as the time aggregate outstanding balances of sale will be counted the Revolving Loan plus all amounts owing by any Credit Party under the Pre-Petition Credit Agreement or any of the loan documents or instruments entered into in connection therewith (other than for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (providing cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) collateral with respect to any sale (a “Relevant Sale”the Existing Letters of Credit) if then outstanding no longer exceed the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion lesser of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale Maximum Amount and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior Borrowing Base.
(ii) Subject to the acquisition terms of the related replacement assetsIntercreditor Agreement, the 90 Senior Secured Notes Indenture and the DIP Term Loan Agreement (as in effect on the Closing Date or 270-day period provided as amended in clause (A) or (B) accordance with the terms hereof), upon receipt by any Credit Party of the preceding sentence shall elapse without execution any Net Cash Proceeds of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occurany asset Disposition, then the Borrowers shall immediately promptly (and, in no event, later than one (1) Business Day after any such Disposition) prepay the outstanding Obligations Loans in the an amount and in the manner described in the first sentence of equal to all such Net Cash Proceeds; provided, however, this clause (iiiii) shall not apply to Net Cash Proceeds from asset Dispositions of less than $500,000 in the aggregate during the term of this Agreement. Any such prepayment shall be applied in accordance with Section 1.3(c).
(iviii) IfIf Parent issues Stock, at or if any time after the Closing Date, any Loan Credit Party issues or incurs any Indebtedness for borrowed moneythat is not otherwise permitted hereunder, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not no later than four (4) the Business Days Day following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Cash Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar yearthereof, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower Parent shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which all such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) Cash Proceeds. Any such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds prepayment shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateapplied in accordance with Section 1.3(c).
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash CollateralizeIn accordance with Section 2.1(f)(iii), as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) during a Repayment Event, on each Scheduled Payment Date, the Borrower shall prepay the Swing Line Loans as required pursuant to Section 3.3(d)(3) of the extent Swing Line Loans in a sufficient amount are then outstanding, CADA; (B) then if any Loan Party or any of such Loan Party’s Subsidiaries (x) incurs or issues any Debt after the Closing Date that is not otherwise permitted to be incurred pursuant to Section 6.3 or (y) issues any capital stock, then, in each case, the Borrower shall prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C ObligationsLoans, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoingnet proceeds received therefrom, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all on or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause date which is two (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (42) Business Days following after the date of receipt (each a “Receipt Date”) by a the Borrower or such Loan Party of such net proceeds; (or the Administrative Agent or the Security TrusteeC) upon receipt of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007funds for the prepayment of principal pursuant to Section 2.10(b), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay cause such funds to be applied as a prepayment of the outstanding Obligations in principal of the manner set forth in Section 2.06(dLoans; (D) if for any reason the aggregate outstanding principal amount of any Lender’s Loans exceeds the Commitment of such Lender during the Availability Period, the Borrower shall immediately prepay such Loans in an amount equal to such excess (and any such prepayment shall be applied to the aggregate amount of the sum outstanding principal of such excess or such increase in such excessLender’s Loans); and (E) upon receipt of any Equity Contributions for the purpose [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. Notwithstanding the foregoingof curing a Default under Section 8.1(l), the Borrower shall cause the proceeds of such Equity Contribution to be applied as a prepayment of outstanding principal of the Loans in an amount not be less than the amount required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if satisfy the Applicable Threshold Test; provided that the Borrower advises may cure any Default under Section 8.1(l) by, within ten (10) Business Days from the date of the Borrowing Base Certificate referred to in Section 8.1(l), making a request to the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it to add additional Systems or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived Subject Funds to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are Available Borrowing Base in fact committed accordance with the terms set forth in this Agreement in order to cause the Outstanding Principal to be utilized less than the Available Borrowing Base. In the event that adding such additional Systems or Subject Funds to repairthe Available Base would cause the Available Borrowing Base to exceed the Outstanding Principal, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed as evidenced by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with new Borrowing Base Certificate approved by the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior new Systems or Subject Funds are subsequently added to the completion Available Borrowing Base in accordance with the terms of this Agreement within such ten (10) Business Day period, then any Default under Section 8.1(l) shall be deemed to be cured. For the corresponding repairavoidance of doubt, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of no such Default shall occur, then be deemed cured if the Borrower shall immediately prepay inclusion of new Systems or Subject Funds does not otherwise reduce the outstanding Obligations in the Outstanding Principal to an amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater less than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessAvailable Borrowing Base.
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, (i) the Effective sum of the aggregate US Tranche Exposures of all US Tranche Lenders exceeds the total US Tranche Commitments, (ii) other than solely as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of the Multicurrency Tranche Exposures of all Revolving LoansMulticurrency Tranche Lenders (calculated, Swing Line Loans and L/C Obligations then outstanding with respect to those Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) exceeds the Total Revolving Loan Commitment at such timetotal Multicurrency Tranche Commitments, or (iii) solely as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of the Multicurrency Tranche Exposures of all Multicurrency Tranche Lenders (as so calculated) exceeds 105% of the total Multicurrency Tranche Commitments, the Borrowers shall immediately (A) prepay shall, promptly after receipt of written notice from the Swing Line Loans to the extent Swing Line Loans in a sufficient amount Administrative Agent, repay Borrowings and, if no Borrowings are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations cash collateralize LC Disbursements in an amount equal account with the Administrative Agent pursuant to the then Effective Amount of the L/C ObligationsSection 2.06(j), in an aggregate principal amount equal sufficient to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at eliminate any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, so long as no Event of Default has occurred and is then continuing, then at the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repairCompany’s option, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of a prepayment required pursuant to the foregoing clause (Aiii)) or , the completion Administrative Agent shall hold any such prepayment to be applied to Eurocurrency Loans in escrow (in an account under the sole dominion and control of the related repairAdministrative Agent) for the benefit of the applicable Lenders and shall release such amounts upon the expiration of the Interest Periods applicable to any such Eurocurrency Loans being prepaid (it being understood and agreed that interest shall continue to accrue on the Obligations until such time as such prepayments are released from escrow and actually applied to reduce the Obligations); provided, restoration or replacement (in however, that upon the case occurrence and during the continuation of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occurDefault, then the Borrower shall such escrowed amounts may be applied immediately prepay the outstanding to Eurocurrency Loans and other Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver without regard to the Administrative Agent, at the time expiration of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date any Interest Period and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers Company shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount all payments under Section 2.16 resulting in such excesstherefrom.
Appears in 1 contract
Mandatory Prepayments. The (a) On the date of any termination or reduction of the Revolving Credit Commitments pursuant to Section 2.09, Canco shall pay or prepay so much of the then-outstanding Revolving Credit Borrowings (and/or shall cash-collateralize outstanding Letters of Credit and B/A and B/A Equivalent Loans) as shall be necessary in order that the aggregate Revolving Credit Utilization at such time will not exceed the aggregate Revolving Credit Commitments (after giving effect to such termination or reduction).
(b) With respect to any Asset Sale, except as expressly provided below in this Section 2.13(b), it shall constitute an "Event of Failure" if the Borrowers shall prepay fail to apply not later than the third Business Day following the determination of the amount of Net Cash Proceeds received 44 39 in respect thereof (but in no event later than 60 days (or 270 days in the event of a casualty or condemnation) after the initial receipt by a Borrower or any Subsidiary of such Net Cash CollateralizeProceeds) an amount equal to 100% of the Net Cash Proceeds received therefrom to prepay outstanding Loans in accordance with Section 2.13(f); provided, as applicablehowever, that the Borrowers may elect, by written notice to the Administrative Agent on or prior to the date that such failure would become an Event of Failure, to use up to $200,000,000 in the aggregate of such Net Cash Proceeds (other than proceeds from sale of the Collateral) to redeem, repurchase or otherwise extinguish certain of their existing Indebtedness pursuant to Section 7.09(a) (provided that any such redemption takes place within 45 days of such notice). Notwithstanding the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeforegoing sentence, the Borrowers shall immediately be entitled to retain, and apply in any manner not otherwise prohibited hereunder, up to U.S.$10,000,000, in the aggregate, of Net Cash Proceeds received from Asset Sales following the Closing Date. In the event that the Net Cash Proceeds from any Asset Sale involving a condemnation or casualty exceed U.S.$100,000,000, the Borrowers shall cause such Net Cash Proceeds to be deposited into an account under the exclusive dominion and control of the Administrative Agent until such time that such Net Cash Proceeds are (Ai) released to, or for the account of, the Borrowers or any Subsidiary in respect of a permitted reinvestment or (ii) used to prepay the Swing Line Loans to the extent Swing Line outstanding Loans in a sufficient amount accordance with Section 2.13(f).
(c) Subject to Section 2.13(j), no later than the earlier of (i) 90 days after the end of each fiscal year of Stone, commencing with the fiscal year ending on December 31, 2000, and (ii) the date on which the financial statements with respect to such period are then outstandingdelivered pursuant to Section 6.04(a), (B) then the Borrowers shall prepay the Revolving Loans to the extent Revolving outstanding Loans in a sufficient amount are then outstanding and (Caccordance with Section 2.13(f) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to 50% of the amount of such Excess Cash Flow that is in excess of U.S.$100,000,000 for the fiscal year then ended.
(d) Subject to Section 2.13(j), in the event that either Borrower or any Subsidiary shall receive Net Cash Proceeds from the issuance or other disposition of Indebtedness for money borrowed of either Borrower or any Subsidiary (other than Indebtedness for money borrowed permitted pursuant to Section 7.01), the Borrowers shall substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by either Borrower or any Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(f).
(e) If on any date, as a result of fluctuations in the Exchange Rate, the Administrative Agent determines that the aggregate Revolving Credit Utilization shall have exceeded for more than three consecutive Business Days an amount equal to 105% of the total Revolving Credit Commitments, the Administrative Agent shall notify Canco of such occurrence and Canco shall on the next succeeding Business Day prepay Revolving Credit Loans is an amount sufficient to eliminate such excess.
(iif) The Subject to Section 2.13(j) and Section 2.23, mandatory prepayments of outstanding obligations under this Agreement made by the Borrowers pursuant to paragraphs (b), (c) and (d) above first, shall repay each Swing Line Loan on be allocated pro rata among the earlier then-outstanding Term Loans and, subject to occur paragraph (i) below, applied pro rata against the remaining scheduled installments of principal due in respect of such Term Loans under Section 2.11(a) and second, if the Term Loans shall have been repaid in full, shall be applied pro rata to permanently reduce existing Revolving Credit Commitments; provided, however, that (Ai) the Swing Line Settlement Date occurring after such Swing Line Loan is made Borrowers may elect, subject to the requirements of Section 2.17 and Section 2.23, to apply up to $50,000,000 of Excess Cash Flow to the prepayment of Term Loans or the Existing Stone Term Facilities without regard to this paragraph (Bf) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))i.e., the Borrowers shall, immediately after may select the completion Class or Classes of each sale Term Loans or other disposition, prepay Existing Stone Term Facilities to receive such prepayment and the Obligations in allocation of such amount to the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) amortization of the Net Proceeds from Term Loans 45 40 or Existing Stone Term Facilities within such Class or Classes) and (ii) the Borrowers may elect, subject to the requirements of Section 2.17, to apply any such sale or disposition; provided that so long as the cash portion mandatory prepayment of the consideration for any such disposed assets is not less than 90% Term Loans from Excess Cash Flow to scheduled installments of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be principal required to make a prepayment be paid pursuant to this clause (iiiSection 2.11(a) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion within 24 months of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)prepayment.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vig) The Borrowers applicable Borrower shall deliver to the Administrative Agent, (i) at the time of each prepayment by such Borrower required under this Section 2.06(cparagraph (b), (Ac) or (d) above, a certificate signed by the chief financial officer a Financial Officer of the Borrowers such Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (Bii) to the extent practicable, at least three days Business Days prior written to the time of each prepayment required under this Section 2.13, a notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Class and Type of each Loan being prepaid and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In All prepayments of Borrowings under this Section shall be subject to Section 2.16, but shall otherwise be without premium or penalty.
(h) To the event that the Borrowers shall subsequently determine that the actual amount required extent possible consistent with paragraph (f) above, amounts to be prepaid was greater than applied pursuant to this Section 2.13 to the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/orshall be applied first to reduce outstanding ABR Loans and, if applicable, Canadian Prime Rate Loans. Any amounts remaining after each such application shall, at the Revolving Loan Commitments option of the applicable Borrower, be applied to prepay Eurodollar Loans immediately and/or shall be permanently reduceddeposited in the Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in each case on the last day of their respective Interest Periods (or, at the direction of the applicable Borrower, on any earlier date) until all outstanding Term Loans or Revolving Loans, as the case may be, have been prepaid or until all the allocable cash on deposit with respect to such Loans has been exhausted. For purposes of this Agreement, the term "Prepayment Account" shall mean an amount equal account established by the applicable Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (h). The Administrative Agent will, at the request of the Borrowers, invest amounts on deposit in the Prepayment Account in Permitted Investments that mature prior to the amount last day of such excessthe applicable Interest Periods of the Eurodollar Borrowings to be prepaid; provided, however, that (i) the Administrative Agent shall not be required to make any investment that, in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any law, statute, rule or regulation and (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a Default or Event of Default shall have occurred and be continuing. The Borrowers shall concurrently therewith deliver indemnify the Administrative Agent for any losses relating to the investments so that the amount available to prepay Eurodollar Borrowings on the last day of the applicable Interest Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on such investments, the Prepayment Account shall not bear interest. Interest or profits, if any, on such investments shall be deposited in the Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loans has been accelerated pursuant to Article VIII, the Administrative Agent may, in its sole discretion, apply all amounts on deposit in the Prepayment Account to satisfy any of the Obligations. Each Borrower hereby grants to the Administrative Agent a certificate signed by Agent, for its benefit and the chief financial officer benefit of the Borrowers demonstrating Facing Agent and the derivation of Lenders, a security interest in the additional amount resulting in such excessPrepayment Account to secure the Obligations.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount If an Event of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeLoss shall occur, the Borrowers shall immediately prepay in full the unpaid principal amount of the then outstanding Second Term Note, together with accrued interest thereon to the date of prepayment and all other amounts owing hereunder and under the Collateral Security Documents, on the earlier of (A) prepay the Swing Line Loans to date occurring 60 days after the extent Swing Line Loans in a sufficient amount are then outstanding, date of such Event of Loss and (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount date on which insurance proceeds are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal received with respect to such excessEvent of Loss.
(ii) The Borrowers shall repay each Swing Line Loan on Notwithstanding anything to the earlier to occur of contrary otherwise contained in this Agreement, in the event that (A) the Swing Line Settlement Senior Loan Termination Date occurring after such Swing Line Loan is made and has not occurred on or before September 4, 1997, (B) the Maturity principal amount of the Senior Obligations is increased (other than in accordance with the terms of the Senior Loan Agreement as in effect on the date hereof) to an amount in excess of the principal amount of the Senior Obligations outstanding on the Closing Date, or (C) the Term Loan Interest Rate (as defined in the GE Capital Loan Agreement) is modified such that it is greater than 8.33%, the Obligations shall become immediately due and payable and the Borrowers shall, within three (3) days of such event, prepay in full the unpaid principal amount of the then outstanding Second Term Note, together with accrued and unpaid interest thereon to the date of prepayment and all other amounts owing hereunder and under the Collateral Security Documents.
(iii) If, at any time after Notwithstanding anything to the Closing Date during any calendar year (including 2007), any Loan Party sells or contrary otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations contained in the manner set forth in Section 2.06(d)this Agreement, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers and the Lender consummate the transactions contemplated by that certain commitment letter dated October 17, 1996, Lender's commitment to make advances under the Second Term Loan shall subsequently determine that terminate and the actual amount required Obligations shall be refinanced pursuant to be prepaid was greater than the amount set forth revolving credit facility described in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excesscommitment letter.
Appears in 1 contract
Sources: Loan Agreement (Castle Energy Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any timetime Borrowing Availability is less than $7,500,000, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay repay the Swing Line Loans aggregate outstanding Revolving Credit Advances to the extent Swing Line Loans required to eliminate such deficiency. If any such deficiency remains after repayment in a sufficient amount are then outstandingfull of the aggregate outstanding Revolving Credit Advances, (B) then prepay Borrower shall provide cash collateral for the Revolving Loans Letter of Credit Obligations in the manner set forth in ANNEX B to the extent Revolving Loans required to eliminate such excess or deficiency. Notwithstanding the foregoing, any Overadvance made pursuant to SECTION 1.1(a)(iii) shall be repaid only on demand in a sufficient amount are then outstanding and accordance with such Section.
(Cii) otherwiseImmediately upon receipt by Borrower or any Secured Guarantor of any proceeds of any cash asset disposition (excluding proceeds of asset dispositions permitted by SECTION 6.8(a)) to the extent the net proceeds of such asset dispositions exceed $250,000 in the aggregate in any Fiscal Year, Cash Collateralize Borrower shall prepay the Obligations in an amount equal to the then Effective Amount of the L/C Obligationsall such proceeds, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur net of (A) the Swing Line Settlement Date occurring after commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Swing Line Loan is made transaction and payable by Borrower or any Secured Guarantor in connection therewith (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal paid to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cashAffiliates), (B) shall be counted. Notwithstanding transfer taxes, (C) amounts payable to holders of senior Liens (to the foregoingextent such Liens constitute Permitted Encumbrances hereunder), the Borrowers shall not be required to make a prepayment pursuant to this clause if any, and (iiiD) with respect to any sale (a “Relevant Sale”) an appropriate reserve for income taxes payable in cash in connection therewith; PROVIDED, that if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that Borrower or the applicable Borrower Secured Guarantor intends to reinvest all or any portion of such Net Proceeds the net proceeds of any asset disposition within 270 days thereafter in replacement fixed assets to the extent and Borrower promptly notifies Agent of that intention in writing, and if (Ax) such Net Proceeds are in fact committed to no Event of Default shall have occurred and be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from continuing at the date of such Relevant Sale written notification, and (y) Borrower or such Secured Guarantor, as the case may be, grants a first security interest to Agent in such replacement assets when acquired, then the amount of any such mandatory prepayment shall be reduced by the amount to be reinvested; PROVIDED, further that if and to the extent that Borrower or such Secured Guarantor, as the case may be, does not reinvest such net proceeds within that 270-day period, Borrower shall then repay the Loans with net proceeds that have not been reinvested on the last day of such 270-day period. Any such prepayment shall be applied in accordance with SECTION 1.3(c).
(iii) If Borrower or any Secured Guarantor shall suffer any Event of Loss, then such Person shall (A) promptly notify the Agent of such Event of Loss with anticipated net proceeds in excess of $1,000,000 (including the amount of the estimated net insurance proceeds net of amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder, if any,) or other awards payable in connection with such Event of Loss) and (B) the acquisition promptly upon receipt of such replacement assets occurs within 270 days from proceeds by such Person, Borrower shall prepay the date Obligations in an amount equal to such proceeds net of (x) all money actually applied (or held in reserve pending such Relevant Sale. If, at any time after application) to repair or reconstruct the occurrence of a Relevant Sale and prior damaged property or property affected by condemnation or taking but subject to the acquisition terms of the SECTION 5.4(c) and (y) all out-of-pocket transaction costs and (z) related replacement assets, the 90 or 270-day period provided cash taxes. Any such prepayment shall be applied in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iiiaccordance with SECTION 1.3(d).
(iv) If, at any time after Proceeds of Keyman Life Insurance pledged to the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, Agent shall be immediately after such issuance or incurrence, used to prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtednessproceeds, which shall be applied in accordance with SECTION 1.3(c).
(v) Not If Holdings or Borrower issues Stock, no later than four (4) the Business Days Day following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)cash proceeds thereof net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount of the sum 50% of such excess or net proceeds. Any such increase prepayment shall be applied in such excessaccordance with SECTION 1.3(c). Notwithstanding the foregoingforegoing two sentences, Borrower need not prepay the Borrower shall not be required to make a prepayment pursuant to Obligations in accordance with this clause SECTION 1.3(b)(v) in connection with (vA) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived issuances of Stock of Holdings to the extent (Abut only to the extent) such Net Insurance Proceeds and Net Condemnation Proceeds the proceeds thereof are in fact committed used to be utilized to repairpurchase, restore retire, redeem or replace such assets pursuant to one otherwise acquire for value all or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and any portion of the relevant counterparty(ies) within 90 days after the related Receipt DateZero Coupon Debt, (B) issuances of Stock of Holdings to the existing Stockholders of Holdings or to seller(s) involved in a Permitted Acquisition, in each case to the extent (but only to the extent) that such repairStock or the proceeds thereof are immediately used as a consideration for all or a portion of the purchase price of a Permitted Acquisition, restoration so long as no Change of Control results after giving effect to such issuance or replacement is completed within 270 days after the series of related Receipt Date and issuances, (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost issuance of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c)directors' qualifying shares, (AD) a certificate signed by the chief financial officer issuances of the Borrowers setting forth in reasonable detail the calculation Stock of the amount Holdings issued to any holder of such prepayment and (B) Indebtedness of Holdings or Borrower to the extent practicable(but only to the extent) issued in connection with an issuance, at least three days prior written notice refinancing or restructuring of Indebtedness permitted hereunder, so long as no Change of Control results after giving effect to such prepayment. Each notice issuance or a series of prepayment shall specify related issuances, and (E) sales or issuances of common Stock to officers, directors or employees of Holdings, Borrower or any Subsidiary, as the prepayment date and case may be, pursuant to a management or employee benefit plan, to the Type and principal amount extent the aggregate proceeds of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth all common Stock so issued in such certificate, the Borrowers shall promptly make an additional prepayment excess of the Loans (and/or, if applicable, the Revolving Loan Commitments redemptions of common Stock of employees shall be permanently reduced) not exceed $2,000,000 in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessany Fiscal Year.
Appears in 1 contract
Sources: Credit Agreement (Roller Bearing Co of America Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at If on any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately date (A) prepay the Swing Line aggregate unpaid principal amount of outstanding Revolving Loans and Swingline Loans plus the outstanding Letter of Credit Obligations (to the extent Swing Line Loans not Cash Collateralized pursuant to clause (ii) below or as provided for in a sufficient amount are then outstanding, Section 3.07) exceeds the lesser of the Aggregate Revolving Commitment and the Revolving Availability or (B) then the aggregate unpaid principal amount of Swingline Loans exceeds the Swingline Amount, in each such case the Borrower shall immediately prepay the amount of such excess.
(ii) If on any date the aggregate amount of all Letter of Credit Obligations shall exceed the lesser of the Letter of Credit Commitment and the Revolving Loans to Availability, the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Borrower shall Cash Collateralize the Obligations on such date its obligations in respect of Letters of Credit in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(iib) The Borrowers shall repay On each Swing Line Loan date after the Effective Date upon which Holdings or any of its Subsidiaries receives any Net Issuance Proceeds from the incurrence by Holdings or any of its Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be incurred under Section 8.04 as in effect on the earlier Effective Date), the Borrower shall promptly prepay the Loans in an amount equal to occur 100% of the Net Issuance Proceeds thereof. Nothing in this paragraph (Ab) shall be deemed to permit the Swing Line Settlement incurrence of any Indebtedness not otherwise permitted under this Agreement; provided, however, that no prepayment shall be required hereunder with respect to the first $500,000 of such Net Issuance Proceeds received after the Effective Date occurring or with respect to any Net Issuance Proceeds received after such Swing Line Loan is made and (B) the Maturity DateEffective Date in connection with the incurrence of Indebtedness for borrowed money secured by Letters of Credit.
(iiic) If, at any time On each date after the Closing Effective Date during upon which Holdings or any calendar year (including 2007), of its Subsidiaries receives any Loan Party sells Net Issuance Proceeds from the issuance or otherwise disposes sale by Holdings or any of any assets (its Subsidiaries of equity securities or other than sales permitted under Sections 5.02(c))equity interests or rights, the Borrowers shall, immediately after the completion of each sale or other disposition, Borrower shall promptly prepay the Obligations in the manner set forth in Section 2.06(d), in each case, Loans in an aggregate principal amount equal to eighty-five percent (85%) 50% of the Net Issuance Proceeds thereof; provided, however, that no prepayment shall be required hereunder with respect to the first $250,000 of Net Issuance Proceeds received after the Effective Date in connection with the issuance on sale of any such Securities or other equity interests or rights.
(d) Within two Business Days after Holdings or any of its Subsidiaries receives any Net Cash Proceeds from any Asset Sale, the Borrower shall promptly prepay the Loans on such sale or disposition; provided that so long as the cash portion date by an amount equal to 100% of the consideration for any Net Cash Proceeds from such disposed assets is not less Asset Sale; provided, however, that (i) with respect to no more than 90% of all consideration for such disposed assets only $1,000,000 in the cash portion aggregate of such Net Cash Proceeds at the time in any fiscal year of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Holdings, such Net Cash Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required give rise to make a prepayment pursuant to this clause paragraph (iiid) if no Default or Event of Default then exists and Holdings has delivered a certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds shall be used to purchase replacement assets used or to be used in the Borrower's or any of its Subsidiaries' business within 270 days following the date of receipt of such Net Cash Proceeds from such Asset Sale (which certificate shall set forth the estimates of the proceeds to be so expended), and if all of any portion of such Net Cash Proceeds are not so used within such 270 day period, the Borrower shall promptly prepay the Loans on the last day of such period by an amount equal to such remaining portion and (ii) no prepayment shall be required hereunder with respect to the first $500,000 of Net Cash Proceeds received after the Effective Date in connection with any sale Asset Sale. Nothing in this paragraph (d) shall be deemed to permit any Asset Sale not otherwise permitted under this Agreement.
(e) Within 10 days following each date after the Effective Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any Recovery Event, the Borrower shall promptly prepay the Loans on such date by an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event; provided, however, that if no Default or Event of Default then exists and such proceeds from such Recovery Event do not exceed $4,000,000, such proceeds shall not give rise to a “Relevant Sale”prepayment pursuant to this paragraph (e) on such date if Holdings has delivered a certificate to the Administrative Agent on or prior to such date stating that such proceeds shall be used to replace or restore any properties or assets in respect of which such proceeds were paid within 365 days following the date of receipt of such proceeds (which certificate shall set forth in the estimates of such proceeds to be so expended), and provided, further, that (i) if the Borrowers advise amount of such proceeds exceeds $4,000,000, then the Administrative Agent Borrower shall promptly prepay the Loans by the entire amount of such proceeds and not just the portion in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest excess of $4,000,000 as provided above in this paragraph (e), and (ii) if all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds proceeds are in fact not contractually committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller used within 90 180 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess proceeds or such increase in such excess. Notwithstanding the foregoing, the Borrower shall are not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing actually used within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 365 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost date of receipt of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal proceeds to the difference between the cost of effect such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270Borrower shall promptly prepay the Loans on the last day of such 180-day period provided or 365-day period, as the case may be, by an amount equal to such remaining portion.
(f) Any prepayments pursuant to this Section 2.07 shall be applied to the outstanding Loans, first, to the outstanding Term Loan installments in clause (A) or (B) the inverse order of their maturities, second, to the outstanding principal balance of the preceding sentence shall elapse without execution Swingline Loan, and, then, to the outstanding principal balance of the related contract (in Revolving Loans. If, at the case of clause (A)) or the completion time of the related repairapplication of any amounts otherwise required to be prepaid pursuant to this Section 2.07, restoration or replacement (in the case no Loans are outstanding, but Letter of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occurCredit Obligations are outstanding, then the Borrower shall immediately prepay the outstanding Cash Collateralize such Letter of Credit Obligations in amounts equal to the prepayments otherwise required hereby.
(g) The Borrower shall pay, together with each prepayment made by the Borrower under this Section 2.07, accrued interest on the amount prepaid and in the manner described in the first sentence of this clause (v). If the Borrower has any amounts required pursuant to Section 4.04; provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds that interest shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if paid in connection with any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before prepayment of Base Rate Loans (other than a prepayment in full) on the Maturity next occurring Interest Payment Date.
(vih) The Borrowers shall deliver Any prepayments pursuant to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) 2.07 made on a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each day other than an Interest Payment Date for any Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal applied first to any Base Rate Loans then outstanding and then to Eurodollar Loans with the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessshortest Interest Periods remaining.
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Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount outstanding balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding the Loan exceeds the Total Revolving Loan Commitment at such timeBorrowing Base, including, as a result of any reduction in the amounts of the Commitments as set forth on Schedule I hereto, the Borrowers shall immediately promptly (Abut in no event later than the second Business Day thereafter) repay the aggregate outstanding Advances to the extent required to eliminate such excess. Such prepayment will not, in and of itself, reduce any Commitment.
(ii) Upon receipt by any Borrower of any cash proceeds of any asset disposition (other than Inventory disposed of in the ordinary course of business), such Borrower shall promptly (but in no event later than the second Business Day thereafter) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations Loan in an amount equal to the then Effective Amount of the L/C Obligationsall such proceeds, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur net of (A) the Swing Line Settlement Date occurring after commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Swing Line Loan is made transaction and payable by such Borrower in connection therewith to an unrelated third party, (B) sales, use and transfer taxes, (C) amounts payable to holders of senior Liens on such asset (to the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007extent such Liens constitute Permitted Encumbrances hereunder), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))if any, the Borrowers shalland, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as no Event of Default has occurred and is continuing, and (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. In the cash portion event of the consideration for any escrow or holdback arrangement with respect to any such disposed assets is not less than 90% of all consideration for such disposed assets only disposition, the cash portion of such Net Proceeds at the time of sale will be counted for purposes receipt of any prepayment required under this sentence and the remaining consideration deferred proceeds as a result thereof shall be counted deemed to occur when and as such proceeds are actually received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedby any Borrower. Notwithstanding the foregoing, the Borrowers following shall not be required subject to make a mandatory prepayment pursuant to under this clause (iiiii): (1) with respect to any sale asset disposition proceeds that are reinvested in similar assets within one hundred eighty (a “Relevant Sale”180) days following receipt thereof; provided that (x) if the Borrowers advise the Administrative such proceeds exceed $500,000 for any one disposition, such Borrower notifies Agent in writing of its intent to reinvest at the time the Net Proceeds from such Relevant Sale proceeds are received that the applicable Borrower intends to reinvest all or any portion and when such reinvestment occurs, (y) no Event of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower Default exists from and the related seller within 90 days from including the date of such Relevant Sale disposition through and (B) the acquisition of such replacement assets occurs within 270 days from including the date of such Relevant Sale. If, at any time after reinvestment (and upon the occurrence of a Relevant Sale such Event of Default, Agent may automatically, or Borrowers shall at the instruction of the Agent, apply any such proceeds to prepayment of the Loans) and (z) at all times prior to such reinvestment such proceeds shall be deposited in a Bank Account (except to the acquisition extent the Agent, in its discretion, requires such Borrower to deposit such amounts in a blocked account); and (2) asset disposition proceeds invested in a Borrower and used to pay off such Borrower’s obligations arising under the terms of the related replacement assetsBridge Loan and to terminate any commitments arising thereunder. To the extent such funds are placed in a blocked account, they shall be made available to such Borrower to reinvest in similar assets upon any written request by such Borrower for the 90 or 270-day period provided in clause (A) or (B) release of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or funds necessary for such reinvestment, so long as no Event of Default has occurred and is continuing at the time of such request. To the extent (x) not used to reinvest in similar assets, or (y) if any Event of Default has occurred or is continuing, such asset disposition proceeds shall occur, then the Borrowers shall immediately prepay the outstanding Obligations be applied in the amount and in the manner described in the first sentence of this clause (iiiaccordance with Section 2.2(c).
(iviii) If, at If any time Borrower issues Stock after the Closing Date, any Loan Party issues Date or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures money (whether or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(dnot permitted pursuant to this Agreement), such Borrower shall promptly (but in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not no event later than four (4) the second Business Days Day following the date of receipt (each a “Receipt Date”of the proceeds thereof) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to the aggregate amount all such proceeds, net of the sum of underwriting discounts and commissions and other reasonable costs, fees and expenses paid in connection therewith. Any such excess or such increase prepayment shall be applied in such excessaccordance with Section 2.2(c). Notwithstanding the foregoing, the Borrower following shall not be required subject to make a prepayment pursuant to under this clause (viii): (1) with respect proceeds of Stock used to fund Permitted Acquisitions; (2) proceeds of the issuance of additional Indebtedness under this Agreement; (3) proceeds of any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four Indebtedness permitted pursuant to Section 7.3(a); and (4) Business Days after proceeds of Stock issued for the related Receipt Date that it or another Loan Party intends purpose of paying off the Borrowers’ obligations arising under the terms of the Bridge Loan, provided that, as to repair, restore or replace any of the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Dateabove, (Bx) Borrower notifies Agent of its intent to issue any such repairStock, restoration or replacement is completed within 270 days after the related Receipt Date if applicable, and (Cy) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an no Event of Default shall occurexists at the time of receipt of such proceeds (and at all times prior to such permitted use, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by deposited into a Bank Account) and, upon the Administrative occurrence of any Event of Default, Agent as collateral. No right to may automatically, or Borrowers shall at the instruction of the Agent, apply any such proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessLoans).
Appears in 1 contract
Mandatory Prepayments. (a) The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 30 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after following the occurrence of a Relevant Sale and prior Change in Control, make an offer to each Lender to prepay the acquisition entire outstanding principal amount of the related replacement assets, the 90 or 270-day period provided Loans pursuant to a Change in clause Control Offer and (Aii) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations Loans of all Lenders properly accepting such offer of prepayment in accordance with such Change in Control Offer. On the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Prepayment Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations Loans of all Lenders who accept the Change in the manner set forth Control Offer at a purchase price in Section 2.06(d) in an amount cash equal to the aggregate amount 101% of the sum principal amount thereof, plus accrued and unpaid interest, if any, to the date of such excess or such increase in such excessprepayment. Notwithstanding the foregoing, the Borrower shall be deemed to have made a Change in Control Offer upon a Change in Control if a third party makes the Change in Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 2.13(a) applicable to a Change in Control Offer made by the Borrower and prepays all or any portion of the Loans as to which offers for prepayment have been validly accepted and not be required to make a prepayment withdrawn pursuant to this clause (v) the terms of such Change in Control Offer. Notwithstanding anything to the contrary set forth herein, an offer to prepay the Loans may be made in advance of a Change in Control, conditional upon such Change in Control, if a definitive agreement is in place with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent such Change in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, Control at the time of each prepayment required under making such offer. Prior to complying with the provisions of this Section 2.06(c2.13(a), (A) but in any event within 30 days following a certificate signed by the chief financial officer of the Borrowers setting forth Change in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateControl, the Borrowers Borrower shall promptly make an additional either repay all outstanding Indebtedness under the Revolving Credit Agreement or obtain the requisite consents, if any, under the Revolving Credit Agreement necessary to permit the prepayment of the Loans (and/orrequired by this Section 2.13(a), if applicable, provided that the Revolving Loan Commitments failure to repay such Indebtedness or obtain such consent shall be permanently reduced) in an amount equal to not affect the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer obligation of the Borrowers demonstrating the derivation of the additional amount resulting in such excessBorrower pursuant to this Section 2.13(a).
Appears in 1 contract
Sources: Senior Secured Interim Loan Agreement (Avis Budget Group, Inc.)
Mandatory Prepayments. The Borrowers (a) No mandatory prepayment shall prepay be required pursuant to this Section 2.03(a) until the aggregate amount of Asset Sales occurring after October 2, 1994 exceeds $10,000,000 (based on the Asset Values thereof, but excluding in the foregoing computation (i) Asset Sales resulting from loss, damage, destruction, or Cash Collateralizetaking where the proceeds thereof are utilized so as to be excluded from the definition of Net Proceeds, and (ii) Asset Sales occurring as applicable) a part of any sale and leaseback transactions permitted pursuant to Section 7.06). Whenever such Asset Values shall have equaled or exceeded such amount, the Obligations as followsfollowing prepayments shall be required to be made:
(i) If, at Within ten (10) Business Days after each date on which any timeConsolidated Company receives any Net Proceeds as a result of or in connection with an Asset Sale by any Consolidated Company, the Effective Amount of all Revolving Loans, Swing Line Term Loans outstanding under Section 2.01 and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Credit Agreement Term Loans shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in be prepaid on a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in pro rata basis by an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five forty percent (8540%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required such amount being subject to make a prepayment adjustment pursuant to paragraph (c) of this clause (iiiSection 2.03) with respect plus interest accrued and unpaid on the amount of such prepayment. If immediately prior to any sale Asset Sale the aggregate amount of prior Asset Sales (a “Relevant Sale”determined as aforesaid) if is less than $10,000,000, but such Asset Sale causes the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed $10,000,000 threshold amount to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and exceeded, then forty percent (B40%) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) pro rata portion of the Net Proceeds of such IndebtednessAsset Sale, based upon the ratio of the amount of the Asset Value of such Asset Sale in excess of the $10,000,000 threshold to the total Asset Value of such Asset Sale, shall be applied as set forth in the preceding sentence; and
(ii) If, within fourteen (14) months following an Asset Sale described in the preceding clause (i), the remaining sixty percent (60%) of such Net Proceeds, or pro rata portion thereof, has neither been (x) invested in properties and assets that replace the properties and assets that were the subject of such Asset Sale, or in properties and assets that will be used in the businesses of Interface and its Subsidiaries existing on November 1, 1995 or in businesses reasonably related thereto, or (y) used to prepay the Term Loans outstanding under Section 2.01 and the Credit Agreement Term Loans, then Interface shall promptly prepay any and all such remaining amounts (such Notwithstanding the foregoing, if all or substantially all of the assets of any Senior Subordinated Notes Guarantor that is a Significant Subsidiary, or all of the capital stock of any Senior Subordinated Notes Guarantor that is a Significant Subsidiary, is sold (including by issuance or otherwise) by Interface or any of its Subsidiaries to any Person other than Interface or its wholly owned Subsidiaries, then the entire amount of the Net Proceeds from such transaction shall immediately be used to prepay the Term Loans and the Credit Agreement Term Loans on a pro rata basis. All such prepayments under this Section 2.03(a) shall be applied in each case against all remaining scheduled amortization payments on a pro rata basis, without prejudice, however, to the provisions of Section 2.03(c).
(vb) Not On the date Interface delivers its annual financial statements pursuant to Section 6.07(a), but in no event later than four (4) Business Days following the date that occurs one hundred twenty (120) days after the last day of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) fiscal year of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearInterface, the Borrower Term Loans outstanding under Section 2.01 and the Credit Agreement Term Loans shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in be prepaid on a pro rata basis by an amount equal to the aggregate amount 25% of the sum of Excess Cash Flow, if any, for such excess or fiscal year (such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required amount being subject to make a prepayment adjustment pursuant to this clause paragraph (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (Bc) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A2.03) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of plus interest accrued and unpaid on the amount of such prepayment. Such prepayment shall be applied in each case to principal installment payments of the Term Loans and the Credit Agreement Term Loans in the inverse order of their respective maturities, without prejudice, however, to the provisions of Section 2.03(c).
(c) Notwithstanding the provisions of paragraphs (a) and (Bb) to the extent practicableof this Section 2.03, at least three days prior written notice of such prepayment. Each notice of (i) no mandatory prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) be required to be prepaid. In made under paragraph (a) or (b) of this Section 2.03 if the event that the Borrowers shall subsequently determine that the actual amount under paragraph (a) or (b) (including any amount required to be prepaid was greater in respect of the Credit Agreement Term Loans) is less than $100,000 in any instance, and (ii) mandatory prepayment amounts otherwise required under said paragraphs (a) and (b) (including any amount required to be prepaid in respect of the amount set forth in Credit Agreement Term Loans) shall be rounded to nearest multiple of $100,000 (such certificatethat, for example, if the portion of Net Proceeds required to be prepaid pursuant to paragraph (a) is $250,000 or more, but less than $350,000, the Borrowers mandatory prepayment amount under this Section 2.03 shall promptly make an additional equal $300,000 plus interest accrued and unpaid on such amount).
(d) Each mandatory prepayment of the Term Loans (and/or, if applicable, the Revolving Loan Commitments and Credit Agreement Term Loans pursuant to this Section 2.03 shall be permanently reduced) applied on a pro rata basis first to Base Rate Advances outstanding under each such series of Term Loans to the full extent thereof before application to Fixed Rate Advances outstanding under such series; provided, however, that, so long as no Default or Event of Default has occurred and is con- tinuing, in lieu of application of such prepayment to Fixed Rate Advances prior to the expiration of the respective Interest Periods with respect thereto, Interface, at its option, may execute an amount Escrow Letter with respect to such prepayments and deposit with the Collateral Agent funds equal to such prepayments for application in accordance with the amount terms of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessEscrow Letter.
Appears in 1 contract
Sources: Term Loan Agreement (Interface Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Available Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the second Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007)Date, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections Section 5.02(c) (excluding clause (iii) thereof))) and the Net Proceeds of such sale or other disposition, when added to the Net Proceeds of all such sales or dispositions by the Loan Parties during the term of this Agreement, in the aggregate, exceed $2,500,000, the Borrowers shall, immediately not later than five (5) Business Days after the completion of each such sale or other dispositiondisposition which results in such excess or an increase in such excess, prepay the Obligations in the manner set forth in Section 2.06(d)(or Cash Collateralize, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (Bapplicable) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale outstanding Loans and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower Borrowers shall not be required to make a prepayment pursuant to this clause (vSection 2.06(c)(iv) with respect to any particular Net Insurance Proceeds sale or Net Condemnation Proceeds other disposition (a “Relevant Sale”) if the Borrower advises Borrowers advise the Administrative Agent in writing within four (4) Business Days after the related Receipt Date time the Net Proceeds from such Relevant Sale are received that it or another the applicable Loan Party intends to repair, restore reinvest all or replace the assets from which any portion of such Net Insurance Proceeds or Net Condemnation Proceeds derived in replacement assets to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost acquisition of such repair, restoration or replacement or if not, assets occurs within 180 days from the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost date of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faithRelevant Sale. If, at any time after the occurrence of a Receipt Date Relevant Sale and prior to the completion acquisition of the corresponding repair, restoration or replacementrelated replacement assets, the 90 or 270180-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower Borrowers shall immediately prepay (or Cash Collateralize, as applicable), the outstanding Loans and other Obligations in the amount and in the manner described in the first sentence of this clause (vSection 2.06(c)(iii). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) IfOn the Maturity Date, at any timeupon a Change of Control or upon the occurrence and during the continuation beyond all applicable grace or cure periods of an Event of Default (as hereinafter defined), the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Company shall immediately (Aa) prepay all of the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in Notes for an amount equal to the then Effective Amount outstanding principal balance plus all accrued but unpaid interest thereon, and (b) pay in full all of the L/C Obligationsother obligations owing to Agent and Purchaser under or in connection with this Agreement, which amount shall be calculated on the date of prepayment and be payable in an aggregate principal amount equal to cash on demand in immediately available funds on such excessdate.
(ii) The Borrowers shall repay each Swing Line Loan on In addition to and not in limitation of the earlier foregoing, if at any time prior to occur of the Maturity Date:
(A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and Company, the Specified Subsidiary or the Project Company consummates project financing through or by means of*, prepay all of the Notes.
(B) the Maturity Date.
(iii) IfCompany, the Specified Subsidiary or the Project Company consummate an equity financing pursuant to which it sells common or preferred shares resulting in net proceeds to the Company of not less than $5,000,000 at any one time after or in any 12 month period, and with the Closing Date during any calendar year principal purpose of raising capital (including 2007a “Qualified Equity Financing”), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), then the Borrowers shall, immediately after the completion of each sale or other disposition, Company shall prepay the Obligations in the manner set forth in Section 2.06(d), in each case, Notes in an aggregate principal amount equal to eighty-five not less than forty percent (8540%) of the Net Proceeds from net proceeds of any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Qualified Equity Financing.
(ivC) Ifthe Company sells the real estate located in the County of Vermilion, at any time after State of Illinois, then, upon the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtednessconsummation of such sale, the Borrowers shall, immediately after such issuance or incurrence, prepay Company will pay to the outstanding Obligations in holder of the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to Note one hundred percent (100%) of the Net Proceeds net proceeds of such Indebtednesssale.
(viii) Not later Notwithstanding anything to the contrary contained herein, all prepayments pursuant to this Section 4.5 shall be applied in the following order of priority to the payment of: (i) all then unpaid fees and expenses of Agent and Purchasers under the Notes and other Transaction Documents other than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when those added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount principal of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment Note pursuant to this clause Amendment; (vii) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if accrued and unpaid interest on the Borrower advises the Administrative Notes (in such order as Agent shall determine in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date its sole discretion); and (Ciii) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray unpaid principal balance of the entire cost Notes.”
(F) Section 5.1 (Financial Statements). Section 5.1 of such repair, restoration or replacement or if notthe Agreement is hereby amended by inserting the following at the end of Section 5.1: “From the date hereof, the Borrower has deposited with Company will also provide to Agent within fifteen (15) days of the Administrative Agent good funds equal to end of each calendar month the difference Company’s projected cash flow forecast including a written report summarizing all material variances between the cost of such repair, restoration or replacement Company’s projected cash flow and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative actual operating results in form and content satisfactory to Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith.”
(G) Section 5.4 (Note Restrictive Covenants). If, at any time after the occurrence of a Receipt Date and prior to the completion Section 5.4 of the corresponding repair, restoration or replacement, Agreement is hereby amended by inserting the 90 or 270-day period provided in clause following new items “(A) or xv)” and “(B) of the preceding sentence shall elapse without execution of the related contract xvi)” and “(in the case of clause xvii)” after item “(A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.xiv):
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (AE Biofuels, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at as of the last day of any timemonth, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to outstanding principal balance of the extent Swing Line Loans in a sufficient amount are then outstanding, Term Loan on such date exceeds (B) (I) the product of (x) 0.70 times (y) TTM Recurring Revenues calculated as of the last month for which financial statements have most recently been delivered pursuant to Section 5.3, less (II) the outstanding balance of Maintenance Advances on such date (such difference being referred to as the “Loan Limit” and such excess being referred to as the “Limiter Excess”), then Borrower shall immediately prepay the Revolving Loans Obligations in accordance with Section 2.4(d)(ii) in an aggregate amount equal to the extent Revolving Loans in a sufficient Limiter Excess.
(ii) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any voluntary or involuntary sale or disposition by Borrower or any of its Subsidiaries of property or assets (including casualty losses or condemnations and sales or dispositions which qualify as Permitted Dispositions under clause (e) of the definition of Permitted Dispositions, but excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), or (f) of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principal amount are then outstanding and (C) otherwise, Cash Collateralize of the Obligations in accordance with Section 2.4(d)(ii) in an amount equal to the then Effective Amount (1) 50% of the L/C Net Cash Proceeds received by Borrower in connection with any sale or disposition contemplated under clause (e) of the definition of Permitted Dispositions, and (2) 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with any other such sales or dispositions, but in either case only to the extent that the aggregate amount of Net Cash Proceeds received (and not paid to Agent as a prepayment of the Obligations) by Borrower or its Subsidiaries for all such sales or dispositions shall exceed $50,000 in any fiscal year; provided that, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of so long as (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a no Default or Event of Default shall occurhave occurred and is continuing, then (B) Borrower shall have given Agent prior written notice of Borrower’s intention to apply such monies to the Borrowers shall immediately prepay costs of replacement of the outstanding Obligations properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the amount business of Borrower or its Subsidiaries, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Borrower and its Subsidiaries shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the manner described business of Borrower and its Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, any amounts remaining in the first sentence cash collateral account shall be paid to Agent and applied in accordance with Section 2.4(d)(ii). Nothing contained in this Section 2.4(c)(ii) shall permit Borrower or any of this clause (iii)its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(iviii) If, at Immediately upon the receipt by Borrower or any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) its Subsidiaries of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)Extraordinary Receipts, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding principal amount of the Obligations in the manner set forth in BN ▇▇▇▇▇▇▇▇▇ accordance with Section 2.06(d2.4(d)(ii) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the aggregate issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 6.1(a), (b), (c), (d), (e), or (f) ) or the issuance by Borrower or any of its Subsidiaries of any shares of its or their Stock (other than in the event that Borrower or any Subsidiary of Borrower forms any Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Stock to Borrower or such Subsidiary, as applicable), Borrower shall prepay the outstanding principal amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this accordance with Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced2.4(d)(ii) in an amount equal to 100% of the amount Net Cash Proceeds received by such Person in connection with such issuance or incurrence of Indebtedness and the Applicable Percentage of the Net Cash Proceeds received by such excessPerson in connection with such issuance of Stock. For purposes of this clause (iv) “Applicable Percentage” means: (A) 25% of the first $1,000,000 of Net Cash Proceeds from Stock issued since the Closing Date, (B) 50% of the next $4,000,000 of Net Cash Proceeds from Stock issued since the Closing Date, and (C) 75% of any other Net Cash Proceeds from Stock issued since the Borrowers Closing Date. The provisions of this Section 2.4(c)(iv) shall concurrently therewith deliver not be deemed to the Administrative Agent a certificate signed be implied consent to any such issuance or incurrence otherwise prohibited by the chief financial officer terms and conditions of the Borrowers demonstrating the derivation of the additional amount resulting in such excessthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Teltronics Inc)
Mandatory Prepayments. (a) The Borrowers Borrower shall prepay the Term Loans held by the Lenders electing to receive a prepayment of the Term Loans from the proceeds of any sale or disposition by the Borrower or such Subsidiary of any of the Collateral (or Cash Collateralize, as applicable) the Obligations as follows:
excluding (i) Ifsales of inventory in the ordinary course of business, at any time(ii) Designated Asset Sales and (iii) sales or dispositions among the Borrower and its Subsidiaries), the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans required under this Section 2.8(a). To the extent that the Borrower or any of its Subsidiaries applies the cash proceeds from such asset sale (or a portion thereof) (net of commissions and other reasonable and customary transaction costs, fees, reserves and expenses properly attributable to such transaction and payable by such Borrower in a sufficient connection therewith (in each case, if paid to an Affiliate, subject to Section 7.7) or under the clauses first and second of Section 2.8(c)) within 300 days of receipt of such net cash proceeds to purchase replacement or other fixed assets for use in the operations of the Borrower or any of its Subsidiaries, then no prepayment shall be required in respect of the net cash proceeds (or portion thereof so applied) from such asset sale. In the event that the Borrower or any of its Subsidiaries has not applied the cash proceeds from such asset sale in accordance with the preceding sentence (the amount are then outstandingof such unapplied cash proceeds being the “Excess Proceeds”), the Borrower shall, within 10 days after the end of the applicable 300-day period, make an offer (Bi) then to each Lender to prepay the Revolving Term Loans of such Lender and (ii) to the extent Revolving Loans the Existing Credit Agreement is then in effect and requires such a sufficient amount are then outstanding and (C) otherwiseprepayment, Cash Collateralize the Obligations in an amount equal to each lender party to the then Effective Amount Existing Credit Agreement (the “Existing Credit Facility Term Loan Lenders”) to prepay the Existing Credit Facility Term Loans, on a pro rata basis based on the principal amount of the L/C ObligationsTerm Loans and the Existing Credit Facility Term Loans then outstanding, in an aggregate principal amount for all the Lenders and Existing Credit Facility Term Loan Lenders equal to the amount of such excessExcess Proceeds. Each such prepayment offer shall be in writing and shall specify the aggregate amount of Excess Proceeds. Each Lender electing to receive such prepayment shall notify the Borrower of its election in writing within 5 days after its receipt of Borrower’s prepayment offer. The Borrower shall pay each Lender and each Existing Credit Facility Term Loan Lender that has accepted such offer of prepayment its pro rata share of such Excess Proceeds on the 20th day after the end of the applicable 300-day period. In the event that any Lender or any Existing Credit Facility Term Loan Lender elects not to receive a prepayment so offered by the Borrower, the Borrower or applicable Subsidiary shall retain such net proceeds that were offered to such non-electing Lender or non-electing Existing Credit Facility Term Loan Lender, as applicable. Any prepayment made on account of the Term Loans pursuant to this paragraph (a) shall be applied in accordance with paragraph (c) below.
(iib) The Borrowers shall repay each Swing Line Loan Borrower shall, in accordance with this Section 2.8(b), prepay the Term Loans held by the Lenders electing to receive a prepayment of the Term Loans from the net cash proceeds received by the Borrower or any Subsidiary from any issuance of Capital Markets Securities occurring on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time or after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes Date. Within two Business Days after receipt of any assets (other than sales permitted under Sections 5.02(c))such proceeds, the Borrowers shall, immediately after the completion of Borrower shall make an offer to each sale or other disposition, Lender to prepay the Obligations in Term Loans of such Lender on a pro rata basis based on the manner set forth in Section 2.06(d), in each caseprincipal amount of the Term Loans then outstanding, in an aggregate principal amount for all the Lenders equal to eighty-five percent the amount of the cash proceeds (85%net of all reasonable and customary costs, fees (including, without limitation, legal, accounting and underwriting fees) and expenses incurred in connection therewith and properly attributable thereto) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion issuance of such Capital Markets Securities (the “Capital Markets Net Proceeds at the time of sale will be counted for purposes of any Cash Proceeds”). Each such prepayment required under this sentence and the remaining consideration offer shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to specify the aggregate amount of the sum of Capital Markets Net Cash Proceeds. Each Lender electing to receive such excess or such increase in such excess. Notwithstanding the foregoing, prepayment shall notify the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent of its election in writing within four (4) two Business Days after the related Receipt Date its receipt of Borrower’s prepayment offer. The Borrower shall pay each Lender that it or another Loan Party intends to repair, restore or replace the assets from which has so accepted such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost offer of prepayment its pro rata share of such repair, restoration or replacement or if not, Capital Markets Net Cash Proceeds on the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of third Business Day after such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaidtwo Business Day election period. In the event that any Lender elects not to receive a prepayment so offered by the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateBorrower, the Borrowers Borrower or applicable Subsidiary shall promptly make an additional retain such Capital Markets Net Cash Proceeds that were offered to such non-electing Lender. Any prepayment made on account of the Term Loans pursuant to this paragraph (and/orb) shall be applied in accordance with paragraph (c) below.
(c) Any prepayments made by the Borrower pursuant to Sections 2.8(a) or (b) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders, if applicableany, then due and payable pursuant to any of the Revolving Loan Commitments shall be permanently reduced) in an amount equal Documents, pro rata to the amount Lenders based on their respective Pro Rata Shares of such excessfees and expenses; third, to interest then due and payable on the Borrowers shall concurrently therewith deliver Term Loans, pro rata to the Administrative Agent a certificate signed applicable electing Lenders based on their respective outstanding Term Loans; and fourth, to the principal of the Term Loans held by the chief financial officer of applicable electing Lenders, until the Borrowers demonstrating the derivation of the additional amount resulting same shall have been paid in such excessfull.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) On each date on which the Revolving Commitment Amount is reduced pursuant to Section 6.2.2, the Company shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in the amount, if any, by which the Revolving Outstandings exceed the Revolving Commitments after giving effect to such reduction. On each date on which the Acquisition Commitment Amount is reduced pursuant to Section 6.2.4, the Company shall prepay Acquisition Loans in the amount, if any, by which the Acquisition Loans exceed the Acquisition Commitments after giving effect to such reduction.
(b) Within 95 days after the end of each Fiscal Year, the Company shall make a sufficient amount are then outstanding prepayment of the Term Loans and (Con and after the Acquisition Termination Date) otherwise, Cash Collateralize the Obligations Acquisition Loans in an amount equal to the then Effective Amount Specified Percentage (as defined below) of Excess Cash Flow for such Fiscal Year. The "Specified Percentage" shall be (i) 75% until the date on which the Company has delivered financial statements demonstrating that the Total Leverage Ratio has been less than 3.0 to 1.0 as of the L/C Obligationslast day of two consecutive Fiscal Quarters and (ii) 50% thereafter.
(c) Concurrently with the receipt by the Company or any Subsidiary of any Applicable Asset Sale Proceeds, the Company shall make a prepayment of the Term Loans and (on and after the Acquisition Termination Date) the Acquisition Loans in an aggregate principal amount equal to 100% of such excess.
Applicable Asset Sale Proceeds (ii) The Borrowers shall repay each Swing Line Loan on the earlier rounded down, if necessary, to occur an integral multiple of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007$100,000), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any no such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when required unless the aggregate amount of Applicable Asset Sale Proceeds so received as cash; otherwise 100% of together with all Net Applicable Asset Sale Proceeds (cash previously received and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required previously applied to make a prepayment prepay Term Loans and Acquisition Loans pursuant to this clause (iiic) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)exceeds $250,000.
(ivd) If, at Concurrently with the receipt by the Company or any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) Subsidiary of any Net Insurance Cash Proceeds or Net Condemnation Proceeds during from the issuance of any calendar year Debt (including 2007other than Debt permitted by Section 10.7), when added to the Net Insurance Proceeds Company shall make a prepayment of the Term Loans and Net Condemnation Proceeds received by a Loan Party (or on and after the Administrative Agent or Acquisition Termination Date) the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Acquisition Loans in an amount equal to 100% of such Net Cash Proceeds.
(e) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from the issuance of any equity securities of the Company or any Subsidiary (other than issuances to employees in an aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoingnot to exceed $1,500,000; issuances to GTCR Capital, GTCR Fund VII, the Borrower TCW/Crescent Lenders and each of their respective Affiliates; and issuances in connection with acquisitions permitted hereunder), the Company shall not be required to make a prepayment pursuant to this clause of the Term Loans and (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days on and after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Acquisition Termination Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Acquisition Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount 75% of such excessNet Cash Proceeds.
(f) In the event a prepayment of Subordinated Loans would be required under the Subordinated Loan Agreement by reason of excess cash flow, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer asset sale proceeds, debt issuance proceeds or equity issuance proceeds, including under Section 3.5 of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Subordinated Loan
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If for any reason the (A) Total Revolving Outstandings at any time, time exceed the Effective Amount of all Aggregate Revolving Loans, Swing Line Loans and Commitments then in effect or (B) the L/C Obligations at any time exceed any applicable L/C Issuer Sublimit then outstanding exceeds in effect or the Total Revolving Loan Commitment at such timeLetter of Credit Sublimit then in effect (as applicable), the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, and/or Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, Obligations in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If; provided, at any time after the Closing Date during any calendar year (including 2007)however, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment Cash Collateralize the L/C Obligations pursuant to this Section 2.04(c)(i) unless after the prepayment in full of the Revolving Loans the Total Revolving Outstandings exceeds the Aggregate Revolving Commitments then in effect.
(ii) Upon the consummation of any Asset Sale that results in the realization by such the Borrower or any of its Subsidiaries of Net Cash Proceeds in excess of $100,000,000 in any fiscal year, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such excess Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (viv) below); provided however, that, with respect to any particular Net Insurance Cash Proceeds or Net Condemnation Proceeds if realized pursuant to an Asset Sale, at the election of the Borrower advises (as notified by the Borrower to the Administrative Agent on or prior to the date of such Asset Sale), and so long as no Default shall have occurred and be continuing, in writing within four lieu of the Borrower prepaying the Term Loans, the Borrower or any Subsidiary (4or any Restricted Subsidiary, if the assets sold pursuant to such Asset Sale were assets of the Borrower or a Restricted Subsidiary) Business Days after the related Receipt Date may reinvest an amount equal to all or any portion of such excess Net Cash Proceeds in properties and assets (including Equity Interests) that it or another Loan Party intends to repair, restore or replace the properties and assets from which that were the subject of such Net Insurance Proceeds Asset Sale or Net Condemnation Proceeds derived to in properties and assets that will be used in the extent (A) such Net Insurance Proceeds business of the Borrower and Net Condemnation Proceeds are its Subsidiaries in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) compliance with Section 7.07 so long as within 90 360 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost receipt of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of excess Net Cash Proceeds such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence reinvestment shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), have been consummated or the Borrower or such Subsidiary shall fail to provide have entered into a definitive agreement for such reinvestment within such 360 day period and deposit the funds and proceeds required under clause subsequently makes such reinvestment within 180 days thereafter (C) above, or an Event of Default shall occur, then in either case as certified by the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver writing to the Administrative Agent); and provided further, at however, that the time amount of each any such excess Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment required under of the Term Loans as set forth in this Section 2.06(c2.04(c)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of the Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clause (iv) below).
(iv) Prepayments of the Term Loans made pursuant to Section 2.04(c)(ii) or (iii) above shall be applied to the remaining principal repayment installments thereof under Section 2.06(b) on a pro rata basis.
(v) Notwithstanding any other provisions of this Section 2.04(c), (A) a certificate signed by to the chief financial officer extent that the repatriation to the United States of any or all of the Borrowers setting forth Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (“Foreign Asset Sale”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material Organization Documents, an amount equal to the Net Cash Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.04(c) so long, but only so long, as the applicable local law or applicable material Organization Documents would not otherwise permit repatriation to the United States (and the -61- Borrower hereby agrees to use all commercially reasonable detail efforts to overcome or eliminate any such restrictions on repatriation even if the calculation Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Cash Proceeds will otherwise be subject to repayment under this Section 2.04(c)), and if within one (1) year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Cash Proceeds is permissible under the applicable local law or applicable material Organization Documents, even if such cash is not actually repatriated at such time, an amount equal to the amount of such prepayment the Net Cash Proceeds will be promptly (and in any event not later than five (5) Business Days) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.04(c) and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine Borrower has determined in good faith that repatriation of any of or all the actual amount required Net Cash Proceeds of any Foreign Asset Sale would have material adverse tax consequences with respect to be prepaid was greater than the amount set forth in such certificateNet Cash Proceeds, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to such Net Cash Proceeds that would be so affected will not be subject to prepayment under this Section 2.04(c); provided that in the case of each of subclauses (A) and (B), nonpayment prior to the time such amounts must be repatriated shall not constitute an Event of Default (and such amounts shall be available (1) first, to repay local foreign indebtedness owing to third parties, if any, and (2) thereafter, for working capital purposes of the Borrower and its Subsidiaries, in each case, subject to the prepayment provisions in this Section 2.04(c)).
(vi) For the avoidance of doubt, nothing in this Section 2.04(c) shall require the Borrower to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessany mandatory prepayments hereunder).
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at If during any timefiscal year of the Borrower, the Effective Amount aggregate cumulative amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Net Asset Disposition Proceeds for such fiscal year exceeds the Total Revolving Loan Commitment at such time$5,000,000, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers Borrower shall, immediately after the completion of each sale or other dispositiondisposition which results in such an excess or an increase in such an excess, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, Loans in an aggregate principal amount equal to eighty-five percent the TGC Facility Share of the Net Asset Disposition Proceeds (85%less any portion of Net Asset Disposition Proceeds for such fiscal year theretofore applied to mandatory prepayment of the Loans and the HGC Loans pursuant to this Section 2.8(c)(i) and Section 2.7(c)(i) of the Net Proceeds from any HGC Loan Agreement). To the extent that such sale or disposition; provided that so long as the cash portion amount is in excess of the consideration for any outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such disposed assets is not less than 90% outstanding Letters of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedCredit. Notwithstanding the foregoing, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iiii) with respect to any sale (a “"Relevant Sale”") if the Borrowers advise Borrower advises the Administrative Agent in writing at the time the Net Asset Disposition Proceeds from such Relevant Sale are received that the applicable Borrower it intends to reinvest all or any portion of such Net Asset Disposition Proceeds in in
(a) replacement assets intended for the same or similar use as the assets disposed and/or (b) income producing assets which are used in the business of the Borrower to the extent that (A) such Net Asset Disposition Proceeds are in fact committed to be reinvested by such the Borrower pursuant to a purchase contract contract, subscription or similar agreement providing for the acquisition of such replacement or income producing assets that is executed by such the Borrower and the related seller within 90 180 days from the date of such Relevant Sale and (B) the acquisition of such replacement or income producing assets occurs within 270 180 days from the date of on which such Relevant Salepurchase contract is so executed and delivered. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement or income producing assets, either of the 90 or 270-180 day period periods provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract contract, subscription or similar agreement (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or an Event of Default shall occurhave occurred and be continuing, then the Borrowers Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iiii).
(ivii) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or (other similar instruments but excluding than Permitted Indebtedness), the Borrowers Borrower shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, Loans in an aggregate principal amount equal to one hundred percent (100%) the TGC Facility Share of the Net Debt Proceeds of such incurrence of Indebtedness. To the extent that such amount is in excess of the outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such outstanding Letters of Credit.
(viii) Not If, at any time any Loan Party issues or sells any Equity Securities, the Borrower shall, immediately after such issuance or sale, prepay the outstanding Loans in an aggregate principal amount equal to the TGC Facility Share of the Net Equity Proceeds of such issuance of such Equity Securities, (to the extent that such amount is in excess of the outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such outstanding Letters of Credit); provided, that no prepayment shall be required in respect of any of the following: (i) any capital contribution from any Loan Party in the form of Equity Securities or any issuance or sale of Equity Securities by any Subsidiary of the Borrower to the Borrower or any of the Borrower's Subsidiaries; (ii) the issuance by any Loan Party of Equity Securities in connection with the formation of Subsidiaries pursuant to transactions otherwise permitted pursuant to Sections 7.4 and 7.5; and (iii) the issuance of Equity Securities by the Borrower to HGC.
(iv) No later than four ten (410) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during that, together with any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular other Net Insurance Proceeds or Net Condemnation Proceeds received by the Loan Parties during the fiscal year of the Borrower in which such date occurs, exceeds $10,000,000, or if applicable, the end of the 270-day period referred to below (or such longer period permitted below for the completion of any repair, restoration or replacement of the affected Property), the Borrower shall prepay the Loans in an amount equal to the TGC Facility Share of the Net Insurance Proceeds or Net Condemnation Proceeds, as applicable, in such fiscal year (excluding any amounts used to repair, restore or replace Property in accordance with the immediately following proviso); provided the Borrower shall not be obligated to make a prepayment under this clause (iv) if and to the extent that (i) the Borrower advises the Administrative Agent in writing within four (4) Business Days after at the related Receipt Date time the relevant Loan Party receives such proceeds that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived derived, and does so within 270 days of receipt thereof or, if such Loan Party shall have commenced such repair, restoration or replacement during such 270-day period and thereafter proceeds with all due diligence to complete such repair, restoration or replacement, such longer period as is reasonably required to complete such repair, restoration or replacement (it being understood that any Net Insurance Proceeds or Net Condemnation Proceeds in excess of $10,000,000 retained by the extent (A) Borrower but not actually expended within such time period to repair, restore or replace the Property from which such Net Insurance Proceeds and or Net Condemnation Proceeds derived shall at that time immediately be used to prepay the Loans in accordance with the first sentence of this clause (iv)).
(v) If at any time any combination of the Backward Interest Coverage Ratio or the Projected Interest Coverage Ratio was 3.50:1.00 or lower as of the prior three (3) consecutive Calculation Dates, the Borrower shall, within ten (10) Business Days after the Borrower has calculated the Backward Interest Coverage Ratio and Projected Interest Coverage Ratio as of the most recent such Calculation Date but in any event not later than ten days after the date on which the Financial Statements for the period then ended are required to be delivered pursuant to Section 6.1, prepay the Loans in an aggregate amount equal to the TGC Facility Share of the aggregate Excess Cash Flow as of the third-preceding Calculation Date.
(vi) If at any time the Borrower receives an indemnification payment pursuant to the assignment of the Acquisition Agreement referred to in Section 4.1(o), the Borrower shall, within ten (10) Business Days after receipt of such payment, prepay the Loans in an aggregate amount equal to the TGC Facility Share of the net proceeds of such payment less the reasonable legal expenses and other costs and expenses directly related to such payment paid or that are to be paid by the Borrower ("Net Indemnification Proceeds"). To the extent that such amount is in excess of the outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such outstanding Letters of Credit. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (vi) if the Borrower advises the Administrative Agent in writing at the time the Net Indemnification Proceeds are received that it intends to use all or any portion of such Net Indemnification Proceeds to mitigate the Borrower's losses relating to such Net Indemnification Proceeds and/or to reinvest all or any portion of such Net Indemnification Proceeds in income producing assets which are used in the business of the Borrower to the extent that (A) the Borrower promptly advises the Administrative Agent of its plan to mitigate the Borrower's losses relating to such Net Indemnification Proceeds and thereafter proceeds to execute such plan with due diligence and/or (B) such Net Indemnification Proceeds are in fact committed to be utilized to repair, restore or replace such assets reinvested by the Borrower pursuant to one a purchase contract, subscription or more contracts similar agreement providing for the acquisition of such repair, restoration or replacement income producing assets that is executed by a Loan Party the Borrower and the relevant counterparty(ies) related seller within 90 180 days after from the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost date of such repair, restoration or replacement or if not, Relevant Sale and the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost acquisition of such repair, restoration or replacement income producing assets occurs within 180 days from the date on which such agreement is so executed and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faithdelivered. If, at any time after the occurrence receipt of a Receipt Date Net Indemnification Proceeds and prior to the completion use thereof to mitigate related losses and/or acquisition of related income producing assets, (i) the corresponding repair, restoration or replacement, Borrower fails to advise the 90 or 270-day period Administrative Agent of and diligently execute a plan to mitigate its losses as provided in clause (A), (ii) or either of the 180 day periods provided in clause (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) purchase contract, subscription or similar agreement or the completion occurrence of the related repairacquisition, restoration or replacement (in the case of clause (B))as applicable, or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (Ciii) above, or an Event of Default shall occurhave occurred and be continuing, then the Borrower shall immediately prepay the outstanding Obligations Loans in the amount (net of the TGC Facility Share of amounts used or reinvested by the Borrower in accordance with the preceding sentence prior to the occurrence of such event) and in the manner described in the first sentence of this clause (vvi). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vivii) The Borrowers If any Change in Control shall deliver to occur, the Administrative AgentBorrower shall, at promptly and in any event no later than ten (10) Business Days following the time occurrence of each prepayment required under this Section 2.06(c)such event, (A) a certificate signed by prepay the chief financial officer outstanding Term Loans and the outstanding Revolving Loans in full. To the extent that such amount is in excess of the Borrowers setting forth outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such outstanding Letters of Credit.
(viii) If any Regulatory Event shall occur, the Borrower shall, promptly and in reasonable detail any event no later than ten (10) Business Days following the calculation occurrence of such event, prepay the outstanding Term Loans and the outstanding Revolving Loans in full. To the extent that such amount is in excess of the amount outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such prepayment and outstanding Letters of Credit.
(Bix) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment All partial prepayments of the Loans made pursuant to Section 2.8(c)(i) through (and/or, if applicable, the Revolving Loan Commitments vi) shall be permanently reduced) applied to prepay the outstanding Term Loans and, after the Term Loans have been paid in an amount equal full, thereafter applied to prepay the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessoutstanding Revolving Loans.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall (a) In the event of any termination of all the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) all its outstanding Revolving Credit Borrowings. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Effective Amount of all aggregate outstanding Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds would exceed the Total Revolving Loan Commitment Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Borrowings in an amount sufficient to eliminate such excess.
(b) Not later than the Borrowers fifth Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall immediately apply 100% of the Net Cash Proceeds received with respect thereto (Aincluding any Restricted Asset Sale Proceeds, as and when repatriated as provided below) to prepay outstanding Loans in accordance with Section 2.13(e). Notwithstanding the Swing Line Loans foregoing, with respect to any Foreign Asset Sale, the 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 Borrower shall use its commercially reasonable efforts to repatriate any Restricted Asset Sale Proceeds as promptly as practicable following the date of such prepayment. To the extent Swing Line the Borrower does not repatriate any such Restricted Asset Sale Proceeds, the Borrower shall prepay Term Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an aggregate amount equal to the then Effective corresponding Restricted Asset Sale Payment Amount on or prior to the first anniversary of the L/C Obligationsoriginal prepayment date for the related Foreign Asset Sale.
(c) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower and (ii) the date on which the financial statements with respect to such fiscal year are delivered pursuant to Section 5.04(a) (the “ECF Prepayment Date”), in each case commencing with the fiscal year ending December 31, 2014, the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to such the excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur , if any, of (A) the Swing Line Settlement Date occurring after ECF Percentage of Excess Cash Flow for such Swing Line Loan is made and fiscal year then ended minus (B) the Maturity Date.
(iiivoluntary prepayments of Term Loans and Revolving Loans under Section 2.12(a) If, at any time after the Closing Date made during any calendar such fiscal year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets but only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to that the Indebtedness so prepaid by its terms cannot be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower reborrowed or redrawn and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior only to the acquisition of the related replacement assets, the 90 or 270-day period provided extent that such prepayments do not occur in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or connection with a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds refinancing of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower may elect to reduce the amount of such prepayment by an amount equal to the ECF Percentage of Restricted ECF, if any, for such fiscal year; provided that the Borrower shall use its commercially reasonable efforts to repatriate such applicable percentage of Restricted ECF as promptly as practicable following the ECF Prepayment Date (and upon any such repatriation, shall prepay the Term Loans by the amount thereof in accordance with this Section 2.13(c)). To the extent the Borrower does not be so repatriate the applicable percentage of Restricted ECF, the Borrower shall prepay Term Loans in an aggregate amount equal to the corresponding Restricted ECF Payment Amount for the applicable fiscal year on or prior to the first anniversary of the date that the original payment was required to make a prepayment have been made pursuant to the terms of this clause Section 2.13(c).
(vd) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(e).
(e) Mandatory prepayments of outstanding Term Loans pursuant to Sections 2.13(b), 2.13(c) and 2.13(d) shall be applied to the remaining scheduled installments of principal due in respect of the outstanding Term Loans, as directed by the Borrower; provided that prior to the Acquisition Closing Date, no mandatory prepayments pursuant to 2.13(b), 2.13(c) or 2.13(d) will be applied to the B-1 Term Loans or the Incremental B-2 Term Loans and otherwise in the event that more than one Class of Term Borrowings are outstanding at the time of such prepayment, the aggregate amount of such prepayment shall be allocated ratably among the Term Borrowings of each such Class (unless, with respect to Other Term Loans and Specified Refinancing Term Loans, the applicable Incremental Assumption Agreement or Refinancing Amendment, as the case may be, provides that such prepayment may be made on a more than ratable basis to the Term Loans that were outstanding at the time of incurrence of the Other Term Loans or Specified Refinancing Term Loans, as the case may be) irrespective of whether such outstanding Term Borrowings are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the 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 Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the amount of any particular Net Insurance Proceeds or Net Condemnation Proceeds if payments required to be made by the Borrower advises pursuant to Section 2.11.
(f) Notwithstanding the foregoing, any Term Lender may elect, by written notice to the Administrative Agent at the time and in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed manner specified by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. Ifto decline all (but not less than all) of any mandatory prepayment of its Term Loans, at any time after the occurrence of a Receipt Date and prior pursuant to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (Athis Section 2.13(b) or (Bc) of (such declined amounts, the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v“Declined Proceeds”). If the Borrower has provided the written notice contemplated All such Declined Proceeds may be retained by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateBorrower.
(vig) The Borrowers Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c)2.13, (Ai) a certificate signed by the chief financial officer a Financial Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (Bii) to the extent practicable, at least three days Business Days’ prior written irrevocable written, fax or other electronically transmitted notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Class and Type of each Loan being prepaid and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In 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 event that the Borrowers shall subsequently determine that the actual principal amount required to be prepaid was greater than to but excluding the amount set forth date of payment.
(h) Notwithstanding the foregoing or anything else herein to the contrary, if on or after the Funding Date (i) the Hotspot Acquisition has not been consummated by the Escrow End Date (to be defined in such certificate, the Borrowers shall promptly make an additional prepayment Escrow Agreement) or (ii) the Escrow Property is distributed to the Administrative Agent pursuant to the terms of the Escrow Agreement, then all B-1 Term Loans and Incremental B-2 Term Loans that are outstanding on such date shall become due and payable (and/or, if applicable, for the Revolving Loan Commitments shall avoidance of doubt the (i) B-1 Term Loans will be permanently reduced) repaid in an amount equal to 99.00% of the principal amount of such excess, B-1 Term Loans plus accrued and the Borrowers shall concurrently therewith deliver unpaid interest to the Administrative Agent a certificate signed by the chief financial officer but excluding such repayment date and (ii) Incremental B-2 Term Loans will be repaid in an amount equal to 99.00% of the Borrowers demonstrating the derivation principal amount of the additional amount resulting in such excessIncremental B-2 Term Loans plus accrued and unpaid interest to but excluding such repayment date).
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) In addition to any mandatory prepayment provisions in any of the Creditor Documents, Borrower shall prepay (or Cash Collateralizepay to the applicable Creditors, as a mandatory prepayment on their respective LIFO Lender Obligations and, if applicable, the Subordinated Lender Obligations, the following amounts (collectively, the "Additional Prepayments") the Obligations that shall be applied to such obligations as followsset forth below:
(i) Ifon February 28, at any time2003, $4,000,000; and
(ii) on August 31, 2003, an amount equal to $3,500,000 plus the Effective Amount amount of all Revolving LoansSpecial Reserve Funds held in the Cash Collateral Account on such date.
(b) Each Additional Prepayment shall be applied, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timefirst, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingLIFO Lender Obligations, (B) then prepay the Revolving Loans if any, and, second, to the extent Revolving Loans Subordinated Lender Obligations, on a pro rata basis; provided, however, that any voluntary prepayment of the Subordinated Lender Obligations made pursuant to the next sentence shall reduce the amounts of the Additional Prepayments in forward order of maturity. In addition, it is understood and agreed that any voluntary prepayment of the Subordinated Lender Obligations that is caused by an obligation of the Borrower to prepay Existing Credit Agreement Obligations as a sufficient result of currency fluctuations relating to the conversion or continuation of a LIBOR Loan (as defined in the Existing Credit Agreement) that is denominated in Euros (including any prepayment of the Noteholder Obligations and the Line of Credit Lender Obligations made so that the holders of such obligations share ratably in the aggregate amount are then outstanding and prepaid) shall be a "Permitted Payment" for purposes of the Subordination Agreement.
(Cc) otherwise, Cash Collateralize the Obligations in The Borrowing Base shall be reduced by an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% sum of all consideration for such disposed assets only the cash portion of such Net Proceeds Additional Prepayments made at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required or prior to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that Borrowing Base is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)calculated.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Lifo Restructuring Agreement (Amcast Industrial Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations Loans as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring date ten Business Days after such Swing Line Loan is made and (B) the Revolving Loan Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007)year, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the outstanding Term Loans and the other Obligations in the manner set forth in Section 2.06(d2.07(d), in each case, in an aggregate principal amount equal to eighty-five one hundred percent (85100%) of the Net Proceeds from any such sale or other disposition; provided provided, however, that so long as if such sale or other disposition occurs prior to the cash portion time when the Term Loans have been loaned to the Borrowers, such sale or other disposition shall result in an automatic and permanent reduction of the consideration for any Term Loan Commitment in an amount equal to the amount that would otherwise have been required to be prepaid pursuant to this Section had such disposed assets is not less than 90% of all consideration for Term Loans been outstanding at such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedtime. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise Borrowing Agent advises the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends Borrowers intend to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower the Borrowers pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such one or more Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 180 days from the date of on which such Relevant Salepurchase contract is so executed and delivered. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270180-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Funding Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Term Loans and the other Obligations in the manner set forth in Section 2.06(d2.07(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness; provided, however, that if such issuance or incurrence occurs prior to the time when the Term Loans have been loaned to the Borrowers, such issuance or incurrence shall result in an automatic and permanent reduction of the Term Loan Commitment in an amount equal to the amount that would otherwise have been required to be prepaid pursuant to this Section had such Term Loans been outstanding at such time.
(v) Not If, at any time, any Loan Party issues or sells any Equity Securities resulting in Net Proceeds, the Borrowers shall, immediately after such issuance or sale, prepay the outstanding Term Loans and the other Obligations in the manner set forth in Section 2.07(d), in an aggregate principal amount equal to fifty percent (50%) of the Net Proceeds of such Equity Securities; provided, however, that if such issuance or sale occurs prior to the time when the Term Loans have been loaned to the Borrowers, such issuance or sale shall result in an automatic and permanent reduction of the Term Loan Commitment in an amount equal to the amount that would otherwise have been required to be prepaid pursuant to this Section had such Term Loans been outstanding at such time; and provided, further, however, that if some or all of the proceeds of such issuance or sale of Equity Securities are used to prepay all or a portion of the Permitted Subordinated Indebtedness (to the extent permitted hereunder), the amount used to prepay such Permitted Subordinated Indebtedness shall not be included in the calculation of any mandatory prepayment required pursuant to this Section 2.07(c)(v). No later than four three (43) Business Days following (x) the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year Proceeds, or (including 2007y) if applicable, the end of the 180th day period described in the proviso below), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower Borrowers shall prepay the outstanding Term Loans and the other Obligations in the manner set forth in Section 2.06(d2.07(d) in an aggregate principal amount equal to one hundred percent (100%) of the aggregate amount of the sum of such excess or such increase Net Insurance Proceeds and Net Condemnation Proceeds in such excess. Notwithstanding fiscal year (excluding any amounts used to repair, restore or replace assets in accordance with the foregoingimmediately following proviso); provided, however, that, so long as no Event of Default shall have occurred and be continuing, the Borrower Borrowers shall not be required obligated to make a prepayment pursuant to under this clause (v) with respect (and the Administrative Agent shall make available to any particular the Borrowers such Net Insurance Proceeds or and Net Condemnation Proceeds Proceeds) if and to the Borrower advises extent that: (A) the Borrowers advise the Administrative Agent in writing within four (4) Business Days after at the related Receipt Date time they or the Administrative Agent receive such proceeds that it they or another Loan Party intends intend to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived and demonstrates to the extent reasonable satisfaction of the Administrative Agent that they have sufficient moneys available (Ainclusive of such proceeds) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed after taking into account projected cash flow needs to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for complete such repair, restoration or replacement that is executed by a Loan Party replacement, and the relevant counterparty(ies) do so within 90 180 days after the related Receipt Dateof receipt thereof, (it being understood that, except as provided in subparagraph (B) such repairof this Section 2.07(c)(v), restoration or replacement is completed within 270 days after the related Receipt Date and (C) the any Net Insurance Proceeds or Net Condemnation Proceeds are sufficient retained by the Borrowers but not actually expended within such time period to defray the entire cost of such repair, restoration restore or replacement or if not, replace the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived shall at that time immediately be used to prepay the Loans); or (B) the Net Condemnation Proceeds are needed to pay for derived from the related repairsettlement of and/or the entry of a final judgment in, restoration or replacement such proceeds shall be held the condemnation action instituted by the Administrative Agent as collateralCity of Reno against Zante (Case No. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before CV03-01903 in the Maturity DateSecond Judicial District Court of the State of Nevada In and For the County of Washoe) in conjunction with the City’s ReTRAC Project.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c2.07(c), (A) a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrowing Agent setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrowing Agent demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Sands Regent)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount outstanding balance of all the aggregate Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Loan exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur lesser of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Maximum Amount and (B) the Maturity Date.
(iii) IfAggregate Borrowing Base, in each case less the aggregate outstanding Swing Line Loan at such time, then Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any time such excess remains after repayment in full of the Closing Date during any calendar year (including 2007)aggregate outstanding Revolving Credit Advances, any Loan Party sells or otherwise disposes Borrowers shall provide cash collateral for the Letter of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)Annex B to the extent required to eliminate such excess. Furthermore, in each case, in an aggregate principal amount equal to eighty-five percent (85%) if at any time the outstanding balance of the Net Proceeds from Revolving Loan of any Borrower exceeds such sale or disposition; provided that so long as Borrower's separate Borrowing Base less the cash portion outstanding balance of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion Swing Line Loan of such Net Proceeds Borrower at such time, then such Borrower shall immediately repay its Revolving Credit Advances in the time amount of sale will be counted such excess (and, if necessary, shall provide cash collateral for purposes its Letter of any prepayment required under this sentence and the remaining consideration shall be counted when received Credit Obligations as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counteddescribed above). Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment any Overadvance made pursuant to this clause (iiiSection 1.1(a)(iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to shall be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)repaid only on demand.
(ivii) If, at any time after the Closing Date, Except as otherwise permitted in any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shallDocuments, immediately after such issuance upon receipt by any Credit Party of cash proceeds of any asset disposition or incurrenceany sale of Stock of any Subsidiary of any Credit Party, Borrowers shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d)Loans, in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) case in an amount equal to the aggregate amount all such proceeds, net of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Net Insurance Proceeds transaction and Net Condemnation Proceeds are payable by Borrowers in fact committed connection therewith (in each case, paid to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Datenon-Affiliates), (B) such repairtransfer taxes, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient amounts payable to defray the entire cost holders of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause senior Liens (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicablesuch Liens constitute Permitted Encumbrances hereunder), at least three days prior written notice of if any, and (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth applied in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessaccordance with Section 1.3(c).
Appears in 1 contract
Sources: Credit Agreement (Itron Inc /Wa/)
Mandatory Prepayments. The Borrowers (a) Immediately upon receipt by the Borrower or any of its Subsidiaries of any proceeds of any sale or disposition by the Borrower or any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount all such proceeds, net of the L/C Obligationscommissions and other reasonable and customary transaction costs, in an aggregate principal amount equal fees and expenses properly attributable to such excess.
transaction and payable by the Borrower in connection therewith (ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each US-DOCS\107476819.12 case, in an aggregate principal amount equal paid to eightynon-five percent (85%) of the Net Proceeds from any such sale or dispositionAffiliates); provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) prepay the Obligations with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if (i) proceeds from the Borrower advises sales of inventory in the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Dateordinary course of business, (Bii) such repair, restoration or replacement is completed within 270 days after proceeds from the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost sales of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed assets securing Indebtedness permitted under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B7.1(c) to the extent practicablesuch proceeds are used to repay such Indebtedness, at least three (iii) proceeds from other asset sales permitted under Section 7.6 in an aggregate amount less than (x) in any Fiscal Year, 10% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of the date of any such asset sale and (y) $150,000,000 in the aggregate after the Closing Date and (iv) proceeds that are reinvested in assets then used or usable in the business of the Borrower and its Subsidiaries within 180 days prior written notice following receipt thereof. Any such prepayment shall be applied in accordance with subsection (c) of this Section.
(b) In the event that the Borrower or any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Subsidiaries that is not permitted under Section 7.1, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such prepayment. Each notice proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to 100% of prepayment shall specify such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the prepayment date and the Type and principal amount Obligations in accordance with subsection (c) of each Loan (or portion thereof) to be prepaidthis Section. In the event that the Borrowers shall subsequently determine Borrower or any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness that constitutes (i) Incremental Term Loans or Revolving Loans in respect of Incremental Revolving Commitments, in each case incurred to refinance all or any portion of the actual amount required Term Loans, (ii) Extended Term Loans or Revolving Loans in respect of Extended Revolving Commitments, in each case incurred to be prepaid was greater refinance all or any portion of the Term Loans or (iii) Other Refinancing Loans incurred to refinance all or any portion of the Term Loans, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such proceeds by the Borrower or its applicable Subsidiary, apply an amount set forth equal to 100% of such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the outstanding principal amount of the relevant Term Loans and, thereafter, to prepay the Obligations in accordance with subsection (c) of this Section.
(c) Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such certificatefees 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, unless otherwise provided in the applicable Incremental Commitment Joinder, Extended Facility Agreement or Refinancing Amendment, as applicable, to the principal balance of any then outstanding Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of such Term Loans, and applied to installments of such Term Loans on a pro rata basis (including, without limitation, the Borrowers shall promptly make an additional prepayment final payment due on the Maturity Date); fifth, to the principal balance of the Loans 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.
(and/ord) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, if applicableas reduced pursuant to Section 2.8 or otherwise increased pursuant to Section 2.23, the Borrower shall immediately repay the Swingline Loans and the Revolving Loan Commitments shall be permanently reduced) Loans in an amount equal to the amount of such excess, together with all accrued and the Borrowers unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall concurrently therewith deliver be applied as follows: first, to the Administrative Agent a certificate signed by Swingline Loans to the chief financial officer full extent thereof; second, to the Revolving Loans that are Base Rate Loans to the full extent thereof; and third, to the Revolving Loans that are Eurodollar Loans to the full extent thereof. If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Borrowers demonstrating aggregate Revolving Credit Exposure of all Lenders exceeds the derivation Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of the additional Credit in an amount resulting in equal to such excessexcess plus any accrued and unpaid fees thereon.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) IfIf at any time the aggregate outstanding balance of the Revolving Loan exceeds the lesser of (A) the Maximum Amount and (B) the Borrowing Base, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. Furthermore, if, at any time, the Effective Amount outstanding balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding the (a) Tranche A Advances exceeds the Total Revolving Loan Commitment at such timeTranche A Borrowing Availability, or (b) the Tranche B Advances exceeds the Tranche B Borrowing Availability, the Borrowers shall immediately (A) prepay repay their Revolving Credit Advances in the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Immediately upon receipt by any Credit Party of proceeds of any asset disposition (excluding proceeds of asset dispositions permitted by Sections 6.8 (a), (d), and (e)) or any sale of Stock of any Subsidiary of any Credit Party, Borrowers shall repay each Swing Line prepay the Revolving Loan on the earlier in an amount equal to occur all such cash proceeds net of (A) the Swing Line Settlement Date occurring after underwriting discounts, commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Swing Line Loan is made transaction and payable by Borrowers in connection therewith (in each case, paid to non-Affiliates), (B) sales, transfer, and similar taxes, (C) amounts payable to holders of senior Liens (to the Maturity Dateextent such Liens constitute Permitted Encumbrances hereunder), if any, (D) amounts required to be placed in escrow in connection with such transaction; provided that such amounts and terms of escrow are customary for transactions of such nature and are reasonably satisfactory to Agent, and provided, further, that upon the release of any such escrowed funds such funds are applied in accordance with this Section 1.2 and (E) amounts that Agent reasonably determines are appropriate to meet indemnity and similar obligations, including post-closing purchase price adjustments in connection with such transaction, provided, that upon such obligations terminating, any such amounts not used for such purposes shall be applied in accordance with this Section 1.2. Any such prepayment shall be applied in accordance with Section 1.2(c).
(iii) If, at any time after Subject to the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner provisions set forth in Section 2.06(d)6.5 of this Agreement, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all Credit Party issues Stock or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. Ifdebt securities, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not no later than four (4) the Business Days Day following the date of receipt (each a “Receipt Date”) by a Loan Party (or of the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)cash proceeds thereof, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower Borrowers shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Revolving Loan in an amount equal to the aggregate amount all such cash proceeds, net of the sum of underwriting discounts and commissions and other reasonable and customary transaction costs paid to non-Affiliates in connection therewith. Any such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateapplied in accordance with Section 1.2(c).
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers In addition to the required payments of principal of the Term Loan A and the Term Loan B set forth in SECTIONS 2.1 (b) and 2.2(c), respectively and any optional payments of principal of the Term Loan A and the Term Loan B effected under SECTION 2.3(a) above, the Borrower shall prepay (or Cash Collateralizemake the following required prepayments of the Term Loan A and Term Loan B, on a pro rata basis in accordance with their respective Pro Rata Percentages times the amount required to be prepaid, as applicable) provided below, each such payment to be made to the Obligations as followsAdministrative Agent for the benefit of the Lenders within the time period and in the amounts specified below:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) The Borrower will prepay the Swing Line Loans to Term Loan A Facility and the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations Term Loan B Facility in an amount equal to the then Effective Amount 100% of the L/C ObligationsNet Cash Proceeds from any Asset Disposition (less any taxes to the extent such taxes are paid) at the times and in the amounts described in the following sentence, and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate, signed by a Financial Officer in an aggregate form and substance reasonably satisfactory to the Administrative Agent and setting forth the calculation of such Net Cash Proceeds. With respect to any Segment maturing during the ninety-day period following such Asset Disposition, the prepayment shall be payable upon maturity of such Segment and shall be in the principal amount equal of such Segment; provided, however, that in the event that at the end of such ninety day period the aggregate amount of such prepayment (the "Prepaid Amount") is less than 100% of the Net Cash Proceeds from such Asset Disposition (the "Required Amount"), the difference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, further, however, that at the election of the Administrative Agent or the Required Term Loan A Lenders and the Required Term Loan B Lenders, upon the occurrence of a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall be immediately due and payable without regard to the preceding provisions. Notwithstanding the foregoing, if the aggregate of all Asset Dispositions made during any calendar year do not exceed $500,000, no prepayment shall be required with respect to such excessAsset Disposition.
(ii) The Borrowers shall repay each Swing Line Borrower will prepay the Term Loan on A Facility and the earlier Term Loan B Facility in an amount equal to occur 100% of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at Net Cash Proceeds from any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets Equity Issuance (other than sales permitted under Sections 5.02(c)a Qualified IPO) and 100% of the Net Cash Proceeds from any Debt Issuance described in SECTION 11.2(v) at the times and in the amounts described in the following sentence and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent and setting forth the calculation of such Net Cash Proceeds. With respect to any Segment maturing during the ninety-day period following such Equity Issuance or Debt Issuance, the prepayment shall be payable upon maturity of such Segment and shall be in the principal amount of such Segment; provided, however, that in the event that at the end of such ninety day period the aggregate amount of such prepayment (the "Prepaid Amount") is less than 100% of the Net Cash Proceeds from such Equity Issuance or Debt Issuance (the "Required Amount"), the Borrowers shalldifference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, immediately after the completion of each sale or other dispositionfurther, prepay the Obligations in the manner set forth in Section 2.06(d)however, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time election of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at or the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower Required Term Loan A Lenders and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. IfRequired Term Loan B Lenders, at any time after upon the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall occurbe immediately due and payable without regard to the preceding provisions. Notwithstanding the foregoing, then if the Borrowers aggregate of all Equity Issuances made during any calendar year do not exceed $500,000, no prepayment shall immediately be required with respect to such Equity Issuances.
(iii) Not later than one hundred eighty (180) days (or such longer period as the Required Term Loan A Lenders and the Required Term Loan B Lenders may determine) after its receipt of any proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event (and in any event upon its determination not to repair or replace any property subject to such Casualty Event), the Borrower will prepay the outstanding Obligations Term Loan A Facility and the Term Loan B Facility in an amount equal to 100% of the amount Net Cash Proceeds from such Casualty Event (less any amounts theretofore applied to the repair or replacement of property subject to such Casualty Event) and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate signed by a Financial Officer, in form and substance reasonably satisfactory to the manner described Administrative Agent, setting forth the calculation of such Net Cash Proceeds; provided, however, (i) nothing in this paragraph shall be deemed to limit or otherwise affect any right of the first sentence Administrative Agent herein or in any of this clause the other Credit Documents to receive and hold such proceeds as loss payee and to disburse the same to the Borrower upon the terms hereof or thereof, or any obligation of the Borrower and each of its Subsidiaries herein or in any of the other Credit Documents to remit any such proceeds to the Administrative Agent upon its receipt thereof, and (iii)ii) any and all such proceeds received or held by the Administrative Agent or the Borrower or any of its Subsidiaries during the continuance of an Event of Default (regardless of any proposed or actual use thereof for repair or replacement) shall be applied to prepay the Term Loan A Facility and the Term Loan B Facility.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, The Borrower will prepay the outstanding Obligations in Term Loan A Facility and the manner set forth in Section 2.06(d), in each case, Term Loan B Facility in an aggregate principal amount equal to one hundred percent (100%) 50% of the Net Cash Proceeds from any Qualified IPO at the times and in the amounts described in the following sentence and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent and setting forth the calculation of such IndebtednessNet Cash Proceeds. With respect to any Segment maturing during the ninety-day period following such Qualified IPO, the prepayment shall be payable upon maturity of such Segment and shall be in the principal amount of such Segment; provided, however, that in the event that at the end of such ninety day period the aggregate amount of such prepayment (the "Prepaid Amount") is less than 50% of the Net Cash Proceeds from such Qualified IPO (the "Required Amount"), the difference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, further, however, that at the election of the Administrative Agent or the Required Term Loan A Lenders and the Required Term Loan B Lenders, upon the occurrence of a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall be immediately due and payable without regard to the preceding provisions.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar Each year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in principal amount of the manner set forth in Section 2.06(d) Term Loan A Facility and the Term Loan B Facility in an amount equal to 75% of Excess Cash Flow for the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. Ifpreceding fiscal year, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount times and in the manner amounts described in the first following sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall and will deliver to the Administrative Agent, at concurrently with the time delivery of each prepayment required under this Section 2.06(c)its Compliance Certificate with respect to such preceding fiscal year, (A) a certificate certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the chief financial officer of the Borrowers Administrative Agent, setting forth in reasonable detail the calculation of such Excess Cash Flow. With respect to any Segment maturing during the ninety-day period following date of delivery of the calculation of Excess Cash Flow, the prepayment shall be payable upon maturity of such Segment and shall be in the principal amount of such Segment; provided, however, that in the event that at the end of such ninety day period the aggregate amount of such prepayment (the "Prepaid Amount") is less than 75% of Excess Cash Flow (the "Required Amount"), the difference between the Required Amount and (B) the Prepaid Amount shall be immediately due and payable; provided, further, however, that at the election of the Administrative Agent or the Required Term Loan A Lenders and the Required Term Loan B Lenders, upon the occurrence of a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall be immediately due and payable without regard to the extent practicablepreceding provisions; provided, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In further, however, that in the event that the Borrowers Compliance Certificate referred to in the preceding sentence shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment reflect a Leverage Ratio of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.less than
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Mandatory Prepayments. The Borrowers shall prepay (a) On the date of any termination or Cash Collateralizereduction of the Revolving Credit Commitments, as applicable) and on any date that the Obligations as follows:
(i) If, at any time, the Effective Amount of all Total Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Exposure exceeds the Total Revolving Loan Commitment at such timeCredit Commitment, the Borrowers Borrower shall immediately pay or prepay so much of the Revolving Credit Borrowings and Swingline Loans, and then shall deposit cash collateral with the Administrative Agent for Letter of Credit Exposure in a manner consistent with the terms of Section 2.18(k), as shall be necessary in order that the Total Revolving Credit Exposure does not exceed the Total Revolving Credit Commitments.
(Ab) Upon the receipt of any Asset Sale Proceeds, Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and Equity Offering Proceeds, the Borrower shall prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in by an amount equal to the then Effective Amount 100% of the L/C Obligationssuch Asset Sale Proceeds, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and (B) the Maturity Date.
(iii) IfEquity Offering Proceeds, at any time provided, however, that if IDSs are issued after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the a time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a no Default or Event of Default shall occurhave occurred and be continuing immediately before or after giving effect thereto and no Interest Deferral Period is in effect, then the Borrowers Borrower shall immediately (i) first deposit Equity Offering Proceeds from the issuance of such IDSs into the Cash Collateral Account to the extent of the Cash Collateral Shortfall Amount after giving effect to the new Holdings Subordinated Notes issued as a part of such IDSs and (ii) then prepay the outstanding Obligations by an amount equal to 50% of (A) the net cash proceeds of the new Holdings Subordinated Notes issued as part of such IDSs, less (B) the funds deposited in the amount and in the manner described in the first sentence Cash Collateral Account pursuant to clause (i) of this clause (iii)proviso, and Holdings and the Borrower shall be permitted to retain the balance; provided, further, however, that that if Equity Offering Proceeds are raised other than from the issuance of additional IDSs at a time when no Default or Event of Default shall have occurred and be continuing immediately before or after giving effect to the event that gave rise to such Equity Offering Proceeds and no Interest Deferral Period is in effect, then the percentage of Equity Offering Proceeds required to be applied to the Obligations shall be reduced from 100% to 50%.
(ivc) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in During each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearDividend Suspension Period, the Borrower shall prepay the outstanding Obligations on each Dividend Payment Date by an amount equal to 100% of the Distributable Cash for the Monthly Fiscal Period most recently ended for which a Monthly Report has been delivered.
(d) During each Interest Deferral Period, the Borrower shall prepay the Obligations on each Subordinated Note Interest Payment Date by an amount equal to (i) 75% of the interest payable on the Holdings Subordinated Notes but for the Interest Deferral Period, to the extent of Available Cash for the most recently ended Monthly Fiscal Period for which a Monthly Report has been delivered, plus (ii) 100% of the Distributable Cash for such Monthly Fiscal Period.
(e) Upon the occurrence of an Event of Default, all or a portion of the funds in the manner Dividend/CapEx Funding Account, the CapEx Funding Account, the Cash Collateral Account and the Existing Subordinated Notes Cash Collateral Account shall, at the election of the Required Lenders with notice to the Administrative Agent, but without further notice or instruction to the Borrower, be applied by the Administrative Agent to the prepayment of the Obligations.
(f) Upon delivery of the annual audited financial statements of Holdings and its Subsidiaries pursuant to Section 5.4(c) for each Annual Fiscal Period, commencing with the Annual Fiscal Period 2004, the Borrower shall prepay the Obligations by an amount equal to 50% of the Annual Excess Cash Flow for such Annual Fiscal Period; provided, however, that if no Default has occurred and is continuing, no Interest Deferral Period is in effect and the Borrower is in compliance with the financial ratios set forth in Section 2.06(d) in 6.18 as of the last day of such Annual Fiscal Period and the most recently ended Monthly Fiscal Period for which the Borrower is required to have delivered a Monthly Report, then the Borrower shall prepay the Obligations by an amount equal to the aggregate amount 50% of the sum excess, if any, of (i) the Annual Excess Cash Flow for such excess or such increase in such excess. Notwithstanding Annual Fiscal Period over (ii) the foregoingamount, if any, deposited into the Borrower shall not be required to make a prepayment CapEx Funding Account pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds Section 2.22 for such Annual Fiscal Period; provided, further, however, that if the Borrower advises withdraws any funds from the Administrative Agent in writing within four (4) Business Days CapEx Funding Account other to make Capital Expenditures promptly after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occurwithdrawal, then the Borrower shall immediately prepay the Obligations by an amount equal to 50% of the funds so withdrawn from the CapEx Funding Account.
(g) All prepayments of the Obligations required in clauses (b) through (f) above shall be applied ratably to the Term Notes (subject to the provisions of paragraph (i) below), the related Term Note Make-Whole Amount (if an Event of Default has occurred and is continuing or an Interest Deferral Period is in effect) and the outstanding Obligations Revolving Credit Exposure; the Revolving Credit Commitments shall not be reduced as a result of prepayments under clauses (b) through (f) unless an Event of Default has occurred and is continuing, in which case the prepayment amount allocated to the Revolving Credit Exposure shall result in a concurrent reduction in the amount Revolving Credit Commitments. Any prepayments applied to Revolving Credit Exposure shall be allocated first to repay Swingline Loans, then to repay Revolving ABR Loans, then to repay Revolving Eurodollars Loans and then to cash collateralize Letter of Credit Exposure in the manner described in Section 2.18.
(h) Upon receipt of any proceeds or any Annual Excess Cash Flow referred to in clauses (b) through (f), the first Administrative Agent shall notify the Lenders of the receipt of such proceeds on the Business Day such proceeds are received, together with the calculation of Term Note Make-Whole Amount, if appropriate, and each Lender's pro rata share of such prepayment (the "Prepayment Notice"), and except as provided in paragraph (i) below, shall promptly apply such proceeds in the manner set forth in paragraph (g) above. All prepayments under this Section 2.10 shall be accompanied by accrued interest on the principal amount being prepaid to but excluding the date of payment. Each prepayment of Term Notes required under this Section 2.10 when an Event of Default has occurred and is continuing or during an Interest Deferral Period shall be accompanied by the corresponding Term Note Make-Whole Amount determined with respect to the amount so prepaid. All prepayments and reductions under this Section 2.10 shall be without premium or penalty except as contemplated in the preceding sentence and pursuant to Section 2.13.
(i) If no Event of this clause Default has occurred and is continuing and no Interest Deferral Period is in effect, each Term Lender shall have the right not to accept its ratable share of any prepayment (va "Waivable Prepayment") and shall be deemed to have exercised such right unless it gives written notice to the Borrower and Administrative Agent of its election to accept its ratable share of such Waivable Prepayment no later than five (5) 41 Business Days after the Administrative Agent delivers the Prepayment Notice. To the extent that any Term Lender elects not to accept its ratable share of a Waivable Prepayment, such share of the Waivable Prepayment shall be offered ratably to the other Term Lenders that have accepted such Waivable Prepayment and the Revolving Credit Lenders based upon their Revolving Credit Exposure (with no reduction in the Revolving Credit Commitments). If no Event of Default has occurred and is continuing and no Interest Deferral Period is in effect, the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held application of any prepayment by the Administrative Agent as collateral. No right shall be made on the earlier of (i) the sixth Business Day immediately following delivery of the Prepayment Notice to apply proceeds the Lenders and (ii) the date that all Term Lenders have notified the Administrative Agent in writing of whether they accept or reject their portion of the Waivable Prepayment, and payments that are otherwise ratable to repairthe Term Lenders shall be made to the Term Lenders that have accepted their ratable shares of any Waivable Prepayment, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before ratably based on the Maturity Dateaggregate share of the Waivable Prepayment that each Term Lender has accepted.
(vij) The Borrowers shall deliver Revolving Credit Exposure of the Lenders is subject to reduction to zero during at least one consecutive thirty (30) day period during each Annual Fiscal Period beginning with the 2004 Annual Fiscal Period (the "Annual Clean-Up"); provided, however, that (a) any amounts advanced prior to the Administrative Agent, at the time commencement of each prepayment required under this Section 2.06(c)an Annual Clean-Up to fund Consolidated Service Contract Capital Expenditures may remain outstanding during an Annual Clean-Up, (Ab) a certificate signed by the chief financial officer any Letters of Credit outstanding as of the Borrowers setting forth in reasonable detail the calculation commencement of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments Annual Clean-Up shall be permanently reduced) in an amount equal permitted to remain outstanding during the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Annual Clean-Up,
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Mandatory Prepayments. The Borrowers shall prepay (a) Immediately upon receipt by the Borrower or any of its Subsidiaries of Net Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately Proceeds from (A) prepay any sale or other disposition by the Swing Line Loans Borrower or any of its Subsidiaries of any of its assets pursuant to the extent Swing Line Loans in a sufficient amount are then outstandingSection 7.6(h) or (q), or (B) then any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount 100% of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or dispositionCash Proceeds; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make prepay the Obligations (i) with respect to proceeds from the sales of inventory in the ordinary course of business, (ii) Net Cash Proceeds not exceeding the greater of $10,000,000 in any Fiscal Year and $25,000,000 in the aggregate after the Closing Date (and if such foregoing amount is exceeded, only such excess amounts shall be subject to this clause (a)) and (iii) Net Cash Proceeds that are reinvested in assets of the general type used or useful in the business of the Borrower and its Subsidiaries within three hundred sixty-five (365) days following receipt thereof; provided that any funds that are committed to be reinvested during the initial three hundred sixty-five (365) days after the receipt of such proceeds but the reinvestment has not yet occurred by the end of such period, the Borrower and its Subsidiaries shall have an additional one hundred eighty (180) day period to consummate such reinvestment; provided, further, that if any such proceeds have not been reinvested at the end of such additional period, the Borrower shall promptly prepay the Obligations and the Other Applicable Indebtedness (as defined below) as required by this Section 2.12(a); provided, further, that if at the time that any such prepayment would be required under this clause (a), the Borrower is required to repay or repurchase or to offer to repurchase or repay Incremental Equivalent Debt that is pari passu to the Obligations (including Incremental Equivalent Debt consisting of (x) term loans secured by a Lien on the Collateral on a pari passu basis with the Lien on the Collateral securing the Obligations and/or (y) senior unsecured notes) pursuant to the terms of the documentation governing such Incremental Equivalent Debt with such Net Cash Proceeds (such Incremental Equivalent Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Obligations and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Obligations that would have otherwise been required pursuant to this clause (va) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the basis of the aggregate outstanding principal amount of the Obligations and Other Applicable Indebtedness at such time, with respect it being agreed that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Obligations in accordance with the terms hereof); provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing event within four ten (410) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost date of such repair, restoration rejection) be applied to prepay the Obligations in accordance with the terms hereof. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(b) Immediately upon receipt by the Borrower or replacement any of its Subsidiaries of any Net Cash Proceeds from any issuance or if notincurrence of Indebtedness by the Borrower or any of its Subsidiaries, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to 100% of such Net Cash Proceeds; provided that the Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 7.1. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) [Reserved].
(d) Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, unless otherwise provided in the applicable Incremental Commitment Joinder, Extended Facility Agreement or Refinancing Amendment, as applicable, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Term Lenders based on their Pro Rata Shares of the Term Loans, and applied pro rata across all installments of the Term Loans, including, without limitation, the final installment on the Maturity Date; third, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fourth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Revolving Lenders based on their respective Revolving Commitments; and fifth, 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 Revolving Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses second through fifth above.
(e) If at any time the aggregate Revolving Credit Exposure of all Revolving Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and the Borrowers unpaid interest on such excess amount and any amounts due under Section 2.19. Each such prepayment shall concurrently therewith deliver be applied as follows: first, to the Administrative Agent a certificate signed by Swingline Loans to the chief financial officer full extent thereof; second, to the Base Rate Revolving Loans to the full extent thereof; and third, to the SOFR Revolving Loans to the full extent thereof. If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Borrowers demonstrating aggregate Revolving Credit Exposure of all Revolving Lenders exceeds the derivation Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of the additional Credit in an amount resulting in equal to such excessexcess plus any accrued and unpaid fees thereon.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (a) On the date of any termination or Cash Collateralizereduction of the Revolving Credit Commitments, as applicable) and on any date that the Obligations as follows:
(i) If, at any time, the Effective Amount of all Total Revolving Loans, Swing Line Loans and L/C Obligations then outstanding Credit Exposure exceeds the Total Revolving Loan Commitment at such timeAmount, the Borrowers shall immediately pay or prepay so much of the Revolving Credit Borrowings and Swingline Loans, and then shall deposit cash collateral with the Administrative Agent for Letter of Credit Exposure in a manner consistent with the terms of Section 2.18(c)(i), as shall be necessary in order that the Total Revolving Credit Exposure does not exceed the Total Revolving Commitment Amount.
(Ab) Upon the receipt of any Asset Sale Proceeds, Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and Equity Offering Proceeds, the Borrowers shall prepay the Swing Line Loans Obligations by an amount equal to 100% of such Asset Sale Proceeds, Insurance Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds, and Equity Offering Proceeds, provided, however, that if Equity Offering Proceeds are raised at a time when no Default or Event of Default shall have occurred and be continuing immediately before or after giving effect to the event that gave rise to such Equity Offering Proceeds and no Interest Deferral Period is in effect, then the percentage of Equity Offering Proceeds required to be applied to the Obligations shall be reduced from 100% to 50%.
(c) [reserved].
(d) During each Interest Deferral Period, the Borrowers shall prepay the Obligations on each Subordinated Note Interest Payment Date by an amount equal to 75% of the interest payable on the Holdings Subordinated Notes but for the Interest Deferral Period, to the extent Swing Line Loans of Available Cash for the most recently ended Monthly Fiscal Period for which a Monthly Report has been delivered, measured as if no Interest Deferral Period had occurred and all interest payable on the Holdings Subordinated Notes was paid in a sufficient amount are then outstandingcash.
(e) [reserved]
(f) Upon delivery of the annual audited financial statements of Holdings and its Subsidiaries pursuant to Section 5.4(c) for each Annual Fiscal Period, (B) then commencing with the Annual Fiscal Period 2009, the Borrowers shall prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in by an amount equal to the then Effective Amount excess of (i) 75% of the L/C Obligations, Annual Excess Cash Flow for such Annual Fiscal Period over (ii) voluntary prepayments of the Term Loan (exclusive of the voluntary prepayment of the Term Loans made on the Restatement Effective Date as described in an aggregate principal amount equal to Section 4.2(n)) and voluntary reductions of the Revolving Credit Commitments during such excessAnnual Fiscal Period.
(iig) The Borrowers All prepayments of the Obligations required in paragraphs (b), (d) and (f) of this Section 2.10 shall repay each Swing Line be applied as follows unless an Event of Default has occurred and is continuing: first, to Fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to interest then due and payable on the earlier Term Loan; third, to occur prepay the scheduled principal installments of the Term Loan in inverse order of maturity, until the Term Loan has been prepaid in full; fourth, to interest then due and payable on the Swingline Loan; fifth, to the principal balance of the Swingline Loan outstanding until the same has been repaid in full; sixth, to interest then due and payable on Revolving Loans; seventh, to the principal balance of Revolving Loans outstanding until the same has been paid in full; eighth, to the payment of all other Obligations that are then due and payable; and ninth, the remaining balance thereof, if any, shall be distributed to the Borrower Representative. Neither the Revolving Loan Commitment nor the Swingline Loan Commitment shall be permanently reduced by the amount of any such prepayments applied to the repayment of Obligations as provided above pursuant to this Section 2.10(g). If an Event of Default has occurred and is continuing, all prepayments of the Obligations required in paragraphs (Ab), (c), (d) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (Bf) the Maturity Dateof this Section 2.10 shall be applied in accordance with Section 2.14.
(iiih) If, at Upon receipt of any time after the Closing Date during proceeds or any calendar year Annual Excess Cash Flow referred to in paragraphs (including 2007b), any Loan Party sells or otherwise disposes (d) and (f) above of this Section 2.10, the Administrative Agent shall notify the Lenders of the receipt of such proceeds on the Business Day such proceeds are received, together with the calculation of any assets prepayment fee, if appropriate, and each Lender’s pro rata share of such prepayment (other than sales permitted under Sections 5.02(c)the “Prepayment Notice”), the Borrowers shalland except as provided in paragraph (i) below and in Section 2.14, immediately after the completion of each sale or other disposition, prepay the Obligations shall promptly apply such proceeds in the manner set forth in paragraph (g) above. All prepayments under this Section 2.06(d), in each case, in an aggregate 2.10 shall be accompanied by accrued interest on the principal amount equal being prepaid to eighty-five percent but excluding the date of payment.
(85%i) If no Event of Default has occurred and is continuing and no Interest Deferral Period is in effect, each Term Lender shall have the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is right not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes to accept its ratable share of any prepayment required under paragraphs (b), (d) and (f) above of this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale Section 2.10 (a “Relevant SaleWaivable Prepayment”) if and shall be deemed to have exercised such right unless it gives written notice to the Borrowers advise and the Administrative Agent of its election to accept its ratable share of such Waivable Prepayment no later than five (5) Business Days after the Administrative Agent delivers the Prepayment Notice. To the extent that any Term Lender elects not to accept its ratable share of a Waivable Prepayment, such share of the Waivable Prepayment shall be offered ratably to the other Term Lenders that have accepted their share of such Waivable Prepayment and the Revolving Lenders based upon their Revolving Credit Exposure (with no reduction in the Revolving Credit Commitments). If no Event of Default has occurred and is continuing and no Interest Deferral Period is in effect, the application of any prepayment by the Administrative Agent shall be made on the earlier of (i) the sixth Business Day immediately following delivery of the Prepayment Notice to the Lenders and (ii) the date that all Term Lenders have notified the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all of whether they accept or any reject their portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Waivable Prepayment.
(ivj) IfThe Borrowers shall reduce the Revolving Loans to not more than $20,000,000 during at least one consecutive thirty (30) day period during each Annual Fiscal Period (the “Annual Clean-Up”); provided, at any time after however, that for purposes of determining compliance with the Closing Dateforegoing Annual Clean-Up provision, any Loan Party issues or incurs any Indebtedness for borrowed moneythere shall be excluded from the calculation of Revolving Loans, including Indebtedness evidenced by noteswithout duplication, bonds, debentures or other similar instruments but excluding Permitted Indebtedness(i) outstanding Revolving Loans, the Borrowers shallproceeds of which were used to finance Permitted Business Acquisitions in an amount up to, immediately after but not exceeding, the specific dollar limitations on such issuance or incurrence, prepay the outstanding Obligations in the manner acquisitions set forth in Section 2.06(d), in each case, in an aggregate principal amount equal 6.5(a) (without giving effect to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding dollar limitations that may apply in Section 6.5(a) from the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days receipt of net proceeds of certain equity issuances made after the related Receipt Date that it or another Loan Party intends closing), and (ii) up to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived Dollar amount specified in the table set forth below in this Section 2.10(j) of outstanding Revolving Loans if and to the extent that (Ax) the proceeds of such Revolving Loans were used to make Consolidated Service Contract Capital Expenditures during the corresponding period in the table below and (y) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed Capital Expenditures were expressly permitted to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed made under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the 6.15: Period Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Loans: 2008 Annual Fiscal Period $ 20,000,000 2009 Annual Fiscal Period $ 20,000,000 2010 Annual Fiscal Period $ 20,000,000 2011 Annual Fiscal Period $ 20,000,000 2012 Annual Fiscal Period $ 20,000,000
Appears in 1 contract
Sources: Credit Agreement (Centerplate, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) In the Obligations as follows:
(i) Ifevent that, at any time, the Effective Amount of all Aggregate Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds Credit Exposure shall exceed the Total aggregate Revolving Loan Commitment Commitments at such time, the Borrowers shall immediately time (A) prepay the Swing Line Loans after giving effect to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells concurrent termination or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)reduction thereof), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale Borrower will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations principal amount of the Swingline Loans and, to the extent of any excess remaining after prepayment in full of outstanding Swingline Loans, the outstanding principal amount of the Revolving Loans in the amount and in of such excess; provided that, to the manner described in extent such excess amount is greater than the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal of Swingline Loans and Revolving Loans outstanding immediately prior to one hundred percent (100%) of the Net Proceeds application of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearprepayment, the Borrower amount so prepaid shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held retained by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (held in the case of clause (A)) or the completion of the related repairCash Collateral Account as cover for L/C Exposure, restoration or replacement (as more particularly described in the case of clause (B)Section 2.3(k), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until thereupon such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds cash shall be held deemed to reduce the aggregate L/C Exposure by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datean equivalent amount.
(vib) The Borrowers shall deliver Each prepayment pursuant to the Administrative Agentprovisions of this Section 2.7 shall be applied ratably among the Lenders holding the Loans being prepaid, in proportion to the principal amount held by each; provided that if any Lender is a Defaulting Lender at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of any such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional any mandatory prepayment of the Loans (and/orshall, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent so directs at the time of making such mandatory prepayment, be applied to the Loans of other Lenders as if such Defaulting Lender had no Loans outstanding and the outstanding Loans of such Defaulting Lender were zero. Each payment or prepayment of a certificate signed by LIBOR Loan made pursuant to the chief financial officer provisions of this Section on a day other than the last day of the Borrowers demonstrating the derivation of the additional amount resulting in such excessInterest Period applicable thereto shall be made together with all amounts required under Section 2.16 to be paid as a consequence thereof.
Appears in 1 contract
Mandatory Prepayments. The Borrowers If on any Revaluation Date, the Administrative Agent shall prepay (or Cash Collateralize, as applicable) the Obligations as followshave determined that:
(ia) Ifthe Total Outstandings exceed the Aggregate Commitments, then (x) the Administrative Agent may (or, at any timethe request of the Required Lenders, shall) promptly notify the Effective Amount of all Revolving Loans, Swing Line Loans Company that a prepayment is required under this Section 2.5.4(a) and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, (y) the Borrowers shall immediately shall, within three Business Days after receipt of such notice, prepay Loans (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, and/or Cash Collateralize Letters of Credit) in an aggregate amount sufficient to eliminate such excess;
(b) the Obligations in Foreign Currency Outstandings exceed an amount equal to the then Effective Amount 105% of the L/C ObligationsForeign Currency Sublimit, in an aggregate principal amount equal to such excess.
then (ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (Ax) the Swing Line Settlement Date occurring after such Swing Line Loan Administrative Agent may (or, at the request of the Required Lenders, shall) promptly notify the Company that a prepayment is made required under this Section 2.5.4(b) and (By) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately within three Business Days after the completion receipt of each sale or other dispositionsuch notice, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, Foreign Currency Loans (and/or Cash Collateralize Letters of Credit) in an aggregate principal amount equal sufficient to eighty-five percent (85%) of reduce the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is Foreign Currency Outstandings to an amount not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise exceeding 100% of all Net Proceeds the Foreign Currency Sublimit;
(cash and non-cashc) shall be counted. Notwithstanding the foregoing, Dollar Equivalent amount of the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect outstanding Fronting Loans of any Fronting Lender to any sale Borrower exceeds 105% of the Fronting Commitment of such Fronting Lender to such Borrower, then (a “Relevant Sale”x) if the Borrowers advise the Administrative Agent in writing may (or at the time the Net Proceeds from such Relevant Sale are received that request of the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to Fronting Lender shall) promptly notify the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets Company that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c)2.5.4(c) and (y) the Company shall cause the applicable Borrower to, (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount within three Business Days after receipt of such prepayment and (B) to the extent practicablenotice, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the prepay Loans (and/or, if applicable, and/or Cash Collateralize the Revolving Loan Commitments shall be permanently reducedapplicable Fronting Loans) in an aggregate amount equal sufficient to reduce the outstanding Fronting Loans of such Lender to such Borrower to an amount not exceeding 100% of the Fronting Commitment of such Lender to such Borrower; or
(d) the Dollar Equivalent amount of such excessthe Affiliate Borrower Outstandings exceeds 105% of the Affiliate Borrower Sublimit, and the Borrowers shall concurrently therewith deliver to then (x) the Administrative Agent a certificate signed by may (or at the chief financial officer request of the Required Lender shall) promptly notify the Company that a prepayment is required under this Section 2.5.4(d) and (y) the Company shall cause the Borrowers demonstrating to, within three Business Days after receipt of such notice, prepay Loans (and/or Cash Collateralize the derivation applicable Letters of Credit) in an aggregate amount sufficient to reduce the Affiliate Borrower Outstandings to an amount not exceeding 100% of the additional amount resulting in such excessAffiliate Borrower Sublimit.
Appears in 1 contract
Sources: Credit Agreement (PENTAIR PLC)
Mandatory Prepayments. The Borrowers (a) Upon receipt by Group or any of its Subsidiaries of any Net Cash Proceeds, the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit as set forth in clause (b) below) in an amount equal to 100% of such Net Cash CollateralizeProceeds; provided, as applicablehowever, that in the case of any Net Cash Proceeds arising from a Property Loss Event, the Borrower need not prepay the Loans (or provide cash collateral in respect of Letters of Credit) to the Obligations as follows:
extent that such Net Cash Proceeds are actually used to repair or replace the damaged or taken property within 180 days of the receipt of such Net Cash Proceeds and, pending application of such proceeds, the Borrower has either (i) Ifpaid the same to the Administrative Agent to be held in a Cash Collateral Account designated by the Administrative Agent or (ii) has applied such proceeds in repayment of the Loans and the Administrative Agent has established a Tranche A Availability Reserve in the amount of such repayment which reserve shall ▇▇▇▇▇ on such 180th day or earlier to the extent Loans up to the amount of such proceeds are used to fund the repair or replacement of such damaged or taken property. Any such mandatory prepayment shall be applied in accordance with Section 2.9(b) below.
(b) Subject to Section 2.13(g) and (h), any prepayments made by the Borrower required to be applied in accordance with this Section 2.9(b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full, second, to repay the outstanding principal balance of the Tranche B Loans until such Tranche B Loans shall have been repaid in full; third, to repay the outstanding principal balance of the Tranche A Loans until such Tranche A 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 9.3 until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein, to the extent the Tranche A Outstandings exceed the Tranche A Commitments. All repayments of Tranche B Loans required to be made pursuant to this Section 2.9(b) shall result in a permanent reduction of the Tranche B Commitments to the extent provided in Section 2.5(c)
(c) If at any time, the Effective Amount aggregate principal amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds Tranche A Outstandings exceed the Total Revolving Loan Commitment Maximum Tranche A Credit at such time, the Borrowers shall immediately (A) Borrower shall, as soon as possible, but in any event within one Business Day, prepay the Swing Line Loans to first and then the extent Swing Line Tranche A Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount such excess. If any such excess remains after repayment in full of the L/C Obligationsaggregate outstanding Swing Loans and Tranche A Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 to the extent required to eliminate such excess. If at any time, the aggregate principal amount of Tranche B Outstandings exceeds the Maximum Tranche B Credit at such time, the Borrower shall forthwith prepay the Tranche B Loans then outstanding in an aggregate principal amount equal to such excess.
(iid) The Borrowers shall repay each Swing Line Loan on Except during the earlier to occur continuance of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default (in which case Section 2.13(g) and (h) shall occurapply), all available funds in the Cash Collateral Account shall be applied on a daily basis first to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal amount of the Tranche A Loans until such Loans have been repaid in full; third to repay the outstanding principal balance of the Tranche B Loans until such Loans shall have been repaid in full; and third to any other Obligation then due and payable. The Administrative Agent agrees so to apply such funds and the Borrower consents to such application. If, following such application, there are no Loans outstanding and no other Obligations are then due and payable (and all outstanding Letter of Credit Obligations have been cash collateralized at 105% of the amount available for drawing thereunder), then the Borrower Administrative Agent shall immediately prepay the outstanding Obligations cause any remaining funds in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided Cash Collateral Account to be paid at the written notice contemplated by direction of the prior sentenceBorrower, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver subject to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer terms of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessOrders.
Appears in 1 contract
Sources: Revolving Credit Agreement (Warnaco Group Inc /De/)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, If at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))Balance exceeds the Borrowing Base then in effect, the Borrowers shall, immediately after within 30 days of notice from the completion Lender of each sale such occurrence, (i) prepay, or other dispositionmake arrangements acceptable to the Lender for the prepayment of, prepay the amount of such excess for application on the Loan Balance, (ii) provide additional collateral, of character and value satisfactory to the Lender in its sole discretion, to secure the Obligations by the execution and delivery to the Lender of security instruments in form and substance satisfactory to the manner set forth Lender, or (iii) effect any combination of the alternatives described in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent clauses (85%i) and (ii) of this Section and acceptable to the Net Proceeds from any such sale or disposition; provided Lender in its sole discretion. In the event that so long as the cash portion of the consideration for any such disposed assets a mandatory prepayment is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence Section and the remaining consideration Loan Balance is less than the amount required to be prepaid, the Borrowers shall repay the entire Loan Balance and, in accordance with the provisions of the relevant Letter of Credit Applications executed by the Borrower or otherwise to the satisfaction of the Lender, deposit with the Lender, as additional collateral securing the Obligations, an amount of cash, in immediately available funds, equal to the L/C Exposure minus the Borrowing Base. The cash deposited with the Lender in satisfaction of the requirement provided in this Section may be invested, at the sole discretion of the Lender and then only at the express direction of the Borrowers as to investment vehicle and maturity (which shall be counted when received as cash; otherwise 100% no later than the latest expiry date of all Net Proceeds any then outstanding Letter of Credit), for the account of the Borrowers in cash or cash equivalent investments offered by or through the Lender.
(cash and non-cashb) shall be counted. Notwithstanding In addition to the foregoing, the Borrowers shall not be immediately prepay the principal of the Note in an amount equal to:
(i) 100% of Net Proceeds from the disposition of any asset, excluding sales permitted under this Agreement;
(ii) 100% of insurance proceeds in excess of $50,000 per occurrence in respect of any insurance policy required to make a prepayment pursuant be maintained by the Borrower under the terms of this Agreement unless Borrower reinvests such proceeds within ninety (90) days of any insurable loss to this clause replace the lost or damaged assets;
(iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time 50% of the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all sale or any portion of such Net Proceeds in replacement assets to the extent issuance (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from after the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (Bthis Agreement) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).any Equity Interest; and
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs 100% of any Indebtedness for borrowed moneyincurred by any Borrower, including other than Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in permitted under Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness6.1 hereof.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The (a) On each date on which the Revolving Loan Commitments are reduced pursuant to SECTION 2.08 or SECTION 2.09, the Borrowers shall repay or prepay (or Cash Collateralize, as applicable) such principal amount of the Obligations as follows:
(i) If, at any time, the Effective Amount of all outstanding Revolving Loans, Swing Line Loans if any (together with interest accrued thereon and L/C any amount due under SECTION 8.05(a)), as may be necessary so that after such payment the aggregate unpaid amount of the Working Capital Obligations then outstanding exceeds does not exceed the Total aggregate amount of the Revolving Loan Commitment at such timeCommitments as then reduced.
(b) On each date on which the Revolving Loans exceed the Borrowing Base, the Borrowers shall immediately repay or prepay such principal amount of the outstanding Revolving Loans, if any (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient together with interest accrued thereon and any amount are then outstandingdue under SECTION 8.05(a)), (B) then prepay as may be necessary so that after such payment the Revolving Loans do not exceed the Borrowing Base. Each such payment or prepayment shall be applied ratably to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C ObligationsLenders outstanding on the date of payment or prepayment in the following order of priority: (i) first, in an aggregate principal amount equal to such excessSettlement Loans; (ii) secondly, to Base Rate Loans which are not Settlement Loans; and, (iii) lastly, to Euro-Dollar Loans.
(iic) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time Within 15 Business Days after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes receipt of any assets Asset Sale Proceeds (other than sales permitted under Sections 5.02(cpursuant to any sale or other disposition pursuant to SECTION 5.30(b)(iii)), such Asset Sale Proceeds shall be paid to the Borrowers Agent for ratable distribution to the Lenders for application to repay or prepay the principal amount of the outstanding Term Loans and applied in the inverse order of maturity, and if the Term Loans have been repaid in full, the Revolving Loans, if any (together with interest accrued thereon and any amount due under Section 8.05(a), provided that if any such payment is due or is made to the Agent on any day other than on the last day of an Interest Period, such amounts shall, immediately after at the completion of each sale or other dispositionBorrowers' election, prepay be held by Agent and applied on the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) last day of the Net Proceeds from any such sale or dispositionInterest Period); provided provided, however, that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause prepay the Loans with Asset Sale Proceeds as provided herein so long as (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets and to the extent (Athat) such Net Asset Sale Proceeds are in fact applied towards (or are contractually committed to be reinvested by such Borrower pursuant to applied towards) assets of a purchase contract providing for similar type as those assets from which the acquisition Asset Sale Proceeds were derived, and which are used or useable in the business of such replacement assets that is executed by such Borrower the Borrowers and the related seller within 90 their Subsidiaries with 180 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Borrowers' receipt thereof, but any such Asset Sale and prior to the acquisition of the related replacement assets, the 90 or 270Proceeds not so applied within such 180-day period (regardless of any contractual commitments) shall be delivered over to the Agent for application to the Loans as provided in clause (A) or (B) of herein on the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the first Business Day following such 180-day period. The Borrowers shall immediately prepay take all actions necessary such that the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at Agent has a perfected lien on any time after the Closing Date, any such replacement assets. The Revolving Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower Commitments shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed reduced by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited such prepayments which are applied to the Revolving Loans pursuant to the foregoing. Contemporaneously with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at payment of any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacementAsset Sale Proceeds pursuant hereto, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds Agent shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) provided a certificate signed by the chief financial officer of the Borrowers setting forth showing in reasonable detail the calculation of the amount of such prepayment and (B) Asset Sale Proceeds. Net Casualty/Insurance Proceeds shall be paid to the extent practicable, at least three days prior written notice Agent in accordance with the terms of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan SECTION 5.08(b).
(or portion thereofd) Any Net Casualty/Insurance Proceeds that are payable on Obligations pursuant to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments SECTION 5.08(b) shall be permanently reduced) applied in an amount equal to accordance with the amount provisions of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessSECTION 2.11(c).
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations Loans as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding outstanding, and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (Ai) the Swing Line Settlement Date occurring date five Business Days after such Swing Line Loan is made and (Bii) the Revolving Loan Maturity Date.
(iii) IfIf for Argosy’s fiscal year ending December 31, at 2004 or any time after fiscal year thereafter, Designated Asset Sale Proceeds exceed $10,000,000 or if during the Closing Date during any calendar year (including 2007)term of this Agreement, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))Designated Asset Sale Proceeds exceed $50,000,000, the Borrowers shall, immediately after the completion of each sale or other dispositiondisposition which results in such an excess, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, outstanding Term Loans in an aggregate principal amount equal to eighty-five one hundred percent (85100%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedexcess. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise any Borrower advises the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends they intend to reinvest all or any portion of such Net Proceeds in replacement assets useful to the business of Argosy or a Subsidiary to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for that the acquisition of such replacement assets that is executed by such Borrower and the related seller occurs within 90 180 days from the date of on which such Relevant Sale is consummated; provided, that the Net Proceeds arising from any sale or other disposition of the capital stock or assets of any Subsidiary after the occurrence of a Trigger Event must be applied to immediately prepay the Term Loans and (B) may not be so reinvested, if the acquisition effect of such replacement assets occurs within 270 days from the date of such Relevant Salesale or other disposition is to cause a Reverse Trigger Event. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270180-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of said clause (A)) or the occurrence of the related acquisition (in the case of said clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Restatement Effective Date, any Loan Party issues or incurs sells any Indebtedness for borrowed money, money (including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding any Permitted IndebtednessIndebtedness described in Section 5.02(a)(iv), (vii), (viii), (xii) or (xiii), the Borrowers shall, immediately after such issuance or incurrencesale, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, Term Loans in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence Restatement Effective Date, any Loan Party issues or sells any Equity Securities yielding Net Proceeds in an aggregate amount in excess of a Receipt Date $25,000,000 during the term of this Agreement (other than Net Proceeds from (x) the issuance and prior exercise of stock options granted to officers and employees of any Loan Party in the completion ordinary course of business and (y) the corresponding repair, restoration or replacementexercise of warrants issued by Argosy and existing on the Restatement Effective Date), the 90 Borrowers shall, immediately after such issuance or 270-day period provided sale, prepay the outstanding Term Loans in clause an aggregate principal amount equal to fifty percent (A) or (B50%) of the preceding sentence shall elapse without execution Net Proceeds of such Equity Securities.
(vi) If, at any time after the related contract (Restatement Effective Date, any Loan Party receives proceeds of insurance, a condemnation award or other compensation in respect of any event described in Section 8.16(a) in excess of $25,000,000, the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower Borrowers shall immediately prepay the outstanding Obligations Term Loans in the an aggregate principal amount and equal to one hundred percent (100%) of such proceeds, except as otherwise provided in the manner described in the first sentence of this clause (vSection 8.16(b). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vivii) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c2.07(c), (A) a certificate signed by the chief financial officer of the Borrowers Argosy setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be have been prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers Argosy demonstrating the derivation of the additional amount resulting in such excess.
(viii) If an Event of Default has occurred and is continuing, all prepayments under this Section 2.07(c) shall be applied as set forth in Section 2.08(c).
Appears in 1 contract
Sources: Credit Agreement (Argosy Gaming Co)
Mandatory Prepayments. The Borrowers (a) Unless the Required Prepayment Lenders shall prepay otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by Holdings, the Borrower or any Restricted Subsidiary, an amount equal to 100% of the Net Cash CollateralizeProceeds thereof shall be applied no 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).
(b) Unless the Required Prepayment Lenders shall otherwise agree, as applicable) if on any date Holdings, the Obligations as follows:
Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event (i) Ifin an amount less than $150,000,000, at any timethen, unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof, such Net Cash Proceeds shall be applied not later than five 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, (x) on each Reinvestment Prepayment Date, the Effective Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount of all Revolving Loans, Swing Line Loans with respect to the relevant Reinvestment Event and L/C Obligations then outstanding exceeds (y) on the Total Revolving Loan Commitment at date (the “Trigger Date”) that is six months after any such timeReinvestment Prepayment Date, the Borrowers Term Loans shall immediately (Abe prepaid as set forth in Section 2.12(d) prepay the Swing Line Loans by an amount equal to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans portion of any Committed Reinvestment Amount with respect to the extent Revolving Loans in a sufficient amount are then outstanding and relevant Reinvestment Event not actually expended by such Trigger Date or (Cii) otherwise, Cash Collateralize the Obligations in an amount equal to or greater than $150,000,000, then such Net Cash Proceeds shall be applied not later than five Business Days after such date 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 the Borrower commencing with the fiscal year ending December 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 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)), 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 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 the prepayment of the 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 Section 2.12, such prepayments shall be applied on a pro rata basis to the then Effective Amount 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 L/C ObligationsTerm Loans pursuant to Section 2.12(e), then, 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 Eurocurrency Loans 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 Term Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) [Reserved.]
(f) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 7.2(aa), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay Term Loans in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) 100% of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Cash Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) incurrence of the Net Proceeds of such Permitted Other Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: First Lien Credit Agreement (Engility Holdings, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
(i) If, If at any timetime the Total Revolving Credit Outstandings exceed the Revolving Credit Facility, including without limitation upon the occurrence of the Revolving Credit Maturity Date, the Effective Amount of all Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, or Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, or any combination of the foregoing, in an aggregate principal amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(a) unless after the prepayment in full of the Revolving Credit Loans and the Swing Line Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility at such time. In addition, on the Revolving Credit Maturity Date, the Borrower shall prepay any Revolving Credit Loans outstanding on such date, together with all accrued interest thereon and any additional amounts required by Section 3.05, to the extent necessary to keep outstanding Revolving Credit Loans ratable with any revised Applicable Percentages of the respective Lenders effective as of such date.
(b) If the Borrower or any of its Subsidiaries receives Net Cash Proceeds in excess of $2,500,000 from any Asset Disposition or any Recovery Event (or series of related Asset Dispositions or Recovery Events), then (i) on the next Business Day following the date of receipt by the Borrower or the applicable Subsidiary of such Net Cash Proceeds and (ii) The Borrowers shall repay each Swing Line Loan on the earlier subject to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)Section 2.06(e), the Borrowers shall, immediately after the completion of each sale or other disposition, Borrower shall prepay the Obligations in Loans by an amount equal to the manner amount of such Net Cash Proceeds, as set forth in Section 2.06(d); provided, in each case, in an aggregate principal amount equal to eighty-five percent (85%) however that at the election of the Net Proceeds from any such sale or disposition; provided that Borrower, and so long as no Default shall have occurred and be continuing, the cash portion Borrower, the applicable Subsidiary or any Loan Party (or any combination of the consideration for foregoing) may reinvest all or any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Cash Proceeds at (other than the time of sale will be counted for purposes Net Cash Proceeds of any prepayment required under this sentence and the remaining consideration Asset Disposition or series of Asset Dispositions pursuant to Section 7.05(q), which shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding subject to the foregoing, the Borrowers shall not be required to make a minimum prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”requirements specified in Section 2.06(d)) if such reinvestment complies with the Borrowers advise following requirements: (w) the Borrower shall deliver to the Administrative Agent in writing at a certificate of a Responsible Officer to the time the Net Proceeds from such Relevant Sale are received effect that the applicable Borrower and/or any such permitted Subsidiary intends to reinvest all or any portion of such Net Cash Proceeds in replacement assets to accordance with this Section 2.06(b), (x) the extent Borrower, the applicable Subsidiary or any Loan Party (Aor any combination of the foregoing) shall reinvest such Net Cash Proceeds are in fact committed to be reinvested by acquire Oil and Gas Properties or operating assets (including the construction of any such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller Acquisition of all of the Equity Interests in one or more Persons owning or constructing any such assets) or to improve, enlarge, develop, re-construct or repair the affected asset, or any combination of the foregoing in each case, within 90 365 days from after the date receipt of such Relevant Sale and the applicable Net Cash Proceeds, (By) the acquisition of such replacement assets occurs within 270 days from Borrower, the date of such Relevant Sale. If, at applicable Subsidiary or any time after the occurrence of a Relevant Sale and prior to the acquisition Loan Party (or any combination of the related replacement assetsforegoing) shall, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of any Disposition of, or Recovery Event with respect to, any Collateral, reinvest such proceeds in assets of the type described in clause (A)x) or above (including the occurrence construction of such assets and the Acquisition of all of the related acquisition Equity Interests in one or more Persons owning or constructing such assets) which will constitute Collateral and take all actions required by Section 6.13 with respect thereto (in provided that any Equity Interests purchased with Net Cash Proceeds of Collateral pursuant to this Section 2.06(b) shall be issued by a Person organized under the case laws of clause any political subdivision of the United States), and (B)z) or a Default or Event of Default the Borrower shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) IfLoans, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner as set forth in Section 2.06(d), with any portion of such Net Cash Proceeds not expended in each caseaccordance with this Section 2.06(b) within such period. Pending the application of any such Net Cash Proceeds, the Borrower may reduce outstanding Indebtedness under the Revolving Credit Loans or invest such Net Cash Proceeds in an aggregate principal amount equal Cash Equivalents in which the Administrative Agent, for the benefit of the Secured Parties, has a perfected first priority security interest, subject only to one hundred percent Permitted Collateral Liens. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.05. With respect to any Asset Disposition or Recovery Event which will result in Net Cash Proceeds in excess of $25,000,000, the Borrower shall notify the Administrative Agent thereof on or prior to the date of the applicable Asset Disposition or promptly following the date that the Borrower has actual knowledge that a Recovery Event has occurred.
(100%c) If any Indebtedness shall be issued or incurred by the Borrower or any of its Subsidiaries (excluding any Indebtedness permitted to be incurred in accordance with Section 7.03(a) through (f) and (h) through (o)), then on the next Business Day following receipt by the Borrower or the applicable Subsidiary of the Net Cash Proceeds of from such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (issuance or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearincurrence, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed Loans by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excessNet Cash Proceeds, as set forth in Section 2.06(d). The provisions of this Section do not constitute a consent to the issuance or incurrence of any Indebtedness by the Borrower or any of its Subsidiaries not otherwise permitted hereunder.
(d) Each prepayment of Loans pursuant to the foregoing provisions of Section 2.06 shall, subject to Section 2.18 and except as provided in the succeeding two sentences, be applied, first, to the prepayment of the Term Loans on a pro rata basis and second to the prepayment of the Revolving Credit Loans as provided in Section 2.06(f) below. Each prepayment of Loans with Net Cash Proceeds received pursuant to Section 7.05(q) from a Disposition of Oil and Gas Properties or the Caesar shall be applied as follows: (i) 60% of such Net Cash Proceeds shall be applied, first, to the prepayment of the Term Loans on a pro rata basis and second to the prepayment of the Revolving Credit Loans as provided in Section 2.06(f) below, and then (ii) the Borrowers remaining 40% of such Net Cash Proceeds shall concurrently therewith deliver be applied in accordance with Section 2.06(b). Each prepayment of Loans with Net Cash Proceeds received pursuant to Section 7.05(q) from a Disposition of Reeled Pipelay Assets shall be applied as follows: (i) 60% of such Net Cash Proceeds shall be applied, first, to the prepayment of the Term Loans on a pro rata basis and second to the prepayment of the Revolving Credit Loans as provided in Section 2.06(f) below, and then (ii) the remaining 40% of such Net Cash Proceeds shall be applied in accordance with Section 2.06(b); provided that such remaining 40% of such Net Cash Proceeds may, if applied to the prepayment of Loans, be applied to the prepayment of Revolving Credit Loans and/or Term Loans as elected by the Borrower. Any prepayment of a Loan pursuant to this Section 2.06 shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. The amount of each prepayment of the Term Loans pursuant to this Section 2.06 shall be applied ratably to the then remaining installments of such Term Loans, and shall be accompanied by any additional amounts required pursuant to Section 2.16.
(e) Notwithstanding any of the other provisions of clause (b) or (c) of this Section 2.06, so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing:
(i) If, on any date on which a prepayment would otherwise be required to be made pursuant to clause (b) or (c) of this Section 2.06, the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $5,000,000, the Borrower may defer such prepayment until the first date thereafter on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (b) or (c) of this Section 2.06 to be applied to prepay Loans exceeds $5,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.06. Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.06 (without giving effect to the first and second sentences of this clause (e)) but which have not previously been so applied.
(ii) If, on any date on which a prepayment would otherwise be required to be made pursuant to clause (b) or (c) of this Section 2.06, the Borrower may, upon prior written notice to the Administrative Agent, elect to defer such all or any portion of such required prepayment until the end of an Interest Period provided that (A) all of the applicable Net Cash Proceeds not previously applied to prepay the Loans shall be deposited in a blocked deposit account at Bank of America on or before the Business Day following receipt of such proceeds and (B) such proceeds are applied to prepay the Loans at the end of such Interest Period. The Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. During the continuance of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Administrative Agent a certificate signed may, and at the direction of the Required Banks shall, prepay the Loans in the amount of all Net Cash Proceeds and proceeds thereof on deposit in, or credited to, such deposit account.
(f) Prepayment of the Revolving Credit Facility made pursuant to this Section 2.06, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the chief financial officer Borrower for use in the ordinary course of its business. Upon the Borrowers demonstrating drawing of any Letter of Credit that has been Cash Collateralized, the derivation of funds held as Cash Collateral shall be applied (without any further action by or notice to or from the additional amount resulting in such excessBorrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Helix Energy Solutions Group Inc)
Mandatory Prepayments. The Borrowers Without reducing the Revolving Loan Facility or any of the Revolving Loan Commitments, the Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations Loans as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment Facility at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding outstanding, in an aggregate principal amount equal to such excess and (C) otherwise, Cash Collateralize the Obligations in respect of the outstanding Letters of Credit in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar fiscal year (including 2007fiscal year 2011), any Loan Party sells or otherwise disposes CBII Entity consummates any Asset Sale and the Net Cash Proceeds of any assets such Asset Sale, when added to the Net Cash Proceeds of all such Asset Sales by all CBII Entities during such fiscal year, in the aggregate, exceed $15,000,000 for such fiscal year (other than sales permitted under Sections 5.02(c)the “Sales Basket Amount”), the Borrowers Borrower shall, immediately after the completion of each sale Asset Sale which results in such an excess or other dispositionan increase in such an excess, prepay (or cause to be prepaid) the outstanding Loans and the other Obligations in the manner set forth in Section 2.06(d2.06(e), in each case, in an aggregate principal amount equal to eighty-five percent 100% of such excess or such increase in such excess; provided, however, that:
(85%A) of no such prepayment shall be required in connection with any Asset Sale (or related Asset Sales, in a series or otherwise) otherwise permitted under Section 5.02(c) to the Net Proceeds from any extent the aggregate consideration received by the CBII Entities for such Asset Sale (or related Asset Sales, in a series or otherwise) does not exceed $2,500,000 (and such sale or disposition; provided that proceeds shall not be counted towards the Sales Basket Amount);
(B) so long as the cash portion no Event of the consideration for any Default has occurred and is continuing or would result therefrom, no such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds required in connection with any Asset Sale (cash and non-cashor related Asset Sale, in a series or otherwise) shall be counted. Notwithstanding the foregoing(each, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) otherwise permitted under Section 5.02(c) to the extent (1) if the Borrowers advise Net Cash Proceeds from all Relevant Sales in any fiscal year exceed $5,000,000, the Borrower advises the Administrative Agent in writing at the time the Net Cash Proceeds from such Relevant Sale are received that the applicable Borrower intends to cause a Borrower Entity to reinvest all or any portion of such Net Cash Proceeds in replacement assets to the extent property, plant, equipment, other fixed or capital assets, and/or investments (Aincluding joint ventures) in Food Related Businesses and (2) such Net Cash Proceeds are in fact committed to be so reinvested by such Borrower pursuant to a purchase contract providing for in the acquisition of such replacement assets that is executed by such Borrower and the related seller or investments within 90 180 days from the date of on which such Net Cash Proceeds from such Relevant Sale are received; and
(C) anything contained in this Section 2.06(c)(ii) to the contrary notwithstanding, so long as no Event of Default has occurred and is continuing or would result from any sale or disposition of assets otherwise giving rise to a required prepayment under this Section 2.06(c)(ii), in the event the Borrower Leverage Ratio is, on a pro forma basis, (1) less than 2.50 to 1.00 both before and after giving effect to such sale or disposition of assets, no such prepayment shall be required, or (2) equal to or in excess of 2.50 to 1.00 both before or after giving effect to such disposition, such prepayment shall be required in an amount equal to the lesser of (i) the amount of such Net Cash Proceeds and (Bii) the acquisition amount necessary to decrease the Borrower Leverage Ratio to, on a pro forma basis, less than 2.5 to 1.0 both before and after giving effect to such disposition and the use of such replacement assets occurs within 270 days from the date of such Relevant SaleNet Cash Proceeds. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assetssuch assets or investments, the 90 or 270180-day period provided in clause (A) or (B) of above in the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default investment or an Event of Default shall occuroccur and is continuing, then the Borrowers Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iiiSection 2.06(c)(ii).
(iviii) If, at during any time after the Closing Datefiscal year (including fiscal year 2011), any Loan Party issues or incurs any Indebtedness CBII Entity receives Extraordinary Receipts and the Net Cash Proceeds of such Extraordinary Receipts that, when added to the Net Cash Proceeds of all such Extraordinary Receipts obtained by all CBII Entities during such fiscal year, in the aggregate, exceed $20,000,000 for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtednesssuch fiscal year, the Borrowers Borrower shall, after receipt thereof by the CBII Entities of the Net Cash Proceeds from such Extraordinary Receipts which results in such an excess or an increase in such an excess (but subject to the reinvestment exceptions below), immediately after such issuance prepay (or incurrence, prepay cause to be prepaid) the outstanding Loans and the other Obligations in the manner set forth in Section 2.06(d2.06(e), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum % of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (vSection 2.06(c)(iii) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds event resulting in the receipt of Extraordinary Receipts (a “Relevant Event”) if the Borrower advises the Administrative Agent in writing within four (4) Business Days promptly after the related Receipt Date time the excess Net Cash Proceeds from such Relevant Event are received that it or another Loan Party the Borrower intends to repaircause a Borrower Entity to reinvest all or any portion of such excess Net Cash Proceeds in property, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived plant, equipment, other replacement assets, and/or investments (including joint ventures) in Food-Related Businesses to the extent (A) such excess Net Insurance Proceeds and Net Condemnation Cash Proceeds are in fact committed to be utilized to repair, restore or replace reinvested by such assets Person pursuant to one or more contracts a purchase contract providing for the acquisition of such repair, restoration or replacement assets that is executed by a Loan Party such Person and the relevant counterparty(ies) related seller within 90 days after one year from the related Receipt Date, date of such Relevant Event and (B) the acquisition of such repair, restoration replacement assets or replacement is completed investments occurs within 270 days after two years from the related Receipt Date and (C) date on which the Net Insurance Cash Proceeds or Net Condemnation Proceeds from the Relevant Event are sufficient received; provided, however, that the Borrower’s requirement to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with advise the Administrative Agent good funds equal as provided above shall not apply to any Relevant Event until the difference between the cost Net Cash Proceeds in respect of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and Relevant Events during such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faithfiscal year exceed $20,000,000. If, at any time after the occurrence of a Receipt Date Relevant Event and prior to the completion acquisition of the corresponding repair, restoration related replacement assets or replacementinvestments, the 90 one-year or 270two-day year period provided in clause (A) or (B) ), respectively, of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or ), the completion occurrence of the related repair, restoration acquisition or replacement investment (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occuroccur and only so long as continuing, then then, upon request of the Administrative Agent or the Required Lenders, the Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (vSection 2.06(c)(iii). If At any time after the occurrence of a Relevant Event and prior to the acquisition of the related replacement assets or investments, upon request of the Administrative Agent or the Required Lenders, the Borrower has provided shall deposit the written notice contemplated Net Cash Proceeds from such Relevant Event which result in an excess over the $20,000,000 per fiscal year amount described above or an increase in such an excess into an interest-bearing account with Rabobank, N.A. or another institution reasonably satisfactory to the Administrative Agent (which interest-bearing account shall be subject to a security interest in favor of the Collateral Agent for the benefit of the Secured Parties that is perfected by the prior sentence, then Borrower entering into a control agreement and other documentation reasonably requested by the Administrative Agent) until such Net Insurance Proceeds or Net Condemnation Cash Proceeds are needed to pay for reinvested or paid toward the related repair, restoration or replacement such proceeds shall be held Loans as directed by the Administrative Agent as collateral. No right Borrower.
(iv) If, at any time after the Effective Date, any CBII Entity issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments that, when added to apply proceeds all such Indebtedness for borrowed money issued or incurred by all CBII Entities after the Effective Date, in the aggregate, exceeds $25,000,000 (provided that (A) Permitted Indebtedness (1) secured solely by a Lien of the type described in clauses (c), (y) or (z) of the definition of Permitted Liens, (2) owed by a CBII Entity to repairanother CBII Entity, restoration or replacement shall exist if any such repair(3) which is unsecured, restoration or replacement cannot reasonably be completed prior to 180 days before matures more than 6 months after the Maturity Date, does not amortize, with respect to which, the relevant CBII Entity agrees to make no voluntary prepayments until at least 6 months after the Maturity Date, and is used within 120 days of incurrence to finance a Permitted Acquisition or an Investment permitted by Sections 5.02(e)(xvi), 5.02(e)(xvii), 5.02(e)(xix) and 5.02(e)(xxii) and (B) Refinancing Indebtedness shall not be counted and non-cash assets received upon issuance of debt in connection with asset acquisitions shall be excluded, except to the extent any such Permitted Indebtedness is issued or incurred to finance, directly or indirectly, the payment in cash or otherwise, of any Distributions by any of the CBII Entities), the Borrower shall, after such issuance or incurrence which results in such an excess or an increase in such an excess, immediately prepay (or cause to be prepaid) the outstanding Loans and the other Obligations in the manner set forth in Section 2.06(e), in each case, in an aggregate principal amount equal to 100% of the Net Cash Proceeds of such of such excess or such increase in such excess.
(v) On or prior to the 120th day following the end of each fiscal year of CBII (commencing with the fiscal year of CBII ending December 31, 2011), the Borrower shall prepay (or cause to be prepaid) the outstanding Loans and the other Obligations in the manner set forth in Section 2.06(e) in an aggregate amount equal to 50% of Excess Cash Flow for such most recently ended fiscal year, provided that such amount shall be reduced to 0% of Excess Cash Flow if the Borrower Leverage Ratio as of the most recently ended fiscal year of CBII shall be less than 2.50:1.00.
(vi) The Borrowers shall deliver to the Administrative AgentIf, at any time after the Effective Date, any CBII Entity issues any Equity Securities (other than (v) issuances thereof the proceeds of which are used to make a Permitted Acquisition; provided that such Permitted Acquisition occurs within 90 days after such issuance, (w) any issuances thereof to CBII or any Borrower Entity, (x) sales or issuances to any management or employees under any employee stock option or stock purchase plans in existence from time to time, (y) issuances of each prepayment required under this Section 2.06(cdirector’s qualifying shares and (z) any issuances in connection with the exercise of warrants), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of Borrower shall, after such prepayment and (B) to the extent practicableissuance or incurrence, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan immediately prepay (or portion thereof) cause to be prepaid. In ) the event that outstanding Loans and the Borrowers shall subsequently determine that other Obligations in the actual amount required to be prepaid was greater than the amount manner set forth in such certificateSection 2.06(e), the Borrowers shall promptly make an additional prepayment of the Loans (and/orin each case, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an aggregate principal amount equal to 50% of the amount of Net Cash Proceeds from such excessEquity Securities.
(vii) If, at any time, any CBII Entity shall fail to observe or perform the covenant contained in Section 5.02(p)(ii), the Administrative Agent may or, upon instructions from the Required Term Lenders, shall, by written notice to the Borrower, require the Borrower to prepay the outstanding Term Loans and the other Obligations with respect thereto, and the Borrowers Borrower shall concurrently therewith deliver to so prepay the Administrative Agent a certificate signed by outstanding Term Loans and the chief financial officer other Obligations with respect thereto, immediately (and in any event within 10 Business Days) following receipt of the Borrowers demonstrating the derivation of the additional amount resulting in such excessnotice.
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers The Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingamounts equal to, (B) then prepay the Revolving Loans if required pursuant to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwiseSection 9.12, Cash Collateralize the Obligations in an amount equal to the then Effective Amount 100% of the L/C Obligations, in an aggregate principal amount equal to Net Cash Proceeds of any sale of any Oil and Gas Property of the Borrower. Such prepayment shall be made no later than two (2) Business Day after the receipt of such excessproceeds.
(ii) The Borrowers Borrower shall repay each Swing Line Loan on prepay the earlier Loans in amounts equal to occur 100% of (A) the Swing Line Settlement Date occurring Net Cash Proceeds of any Casualty Event related to the Borrower or any of its Subsidiaries. Such prepayment shall be made no later than 20 Business Days after the receipt of such Swing Line Loan is made and (B) the Maturity Dateproceeds.
(iii) IfNotwithstanding anything herein to the contrary, at any time after if the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes amount of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth Net Cash Proceeds referred to in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%3.04(c)(i) or Section 3.04(c)(ii) would otherwise be a required prepayment under the terms of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets Senior Revolving Credit Agreement, then prepayment shall only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets Agreement to the extent (A) any excess Net Cash Proceeds remain after making such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)prepayment.
(iv) IfNotwithstanding anything herein to the contrary, at if any time after of the Closing Date, any Loan Party issues amounts referred to in Section 3.04(c)(i) or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, Section 3.04(c)(ii) will otherwise be used to prepay the outstanding Obligations Senior Revolving Credit Notes or reinvested (including for actual repair and replacement following a Casualty Event) in assets used or useful in carrying on the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) business of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each Borrower and its Subsidiaries having a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount fair market value at least equal to the aggregate amount fair market value of the sum assets sold, leased or otherwise disposed of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore improve or replace any existing assets of the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds Borrowers and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) its Subsidiaries within 90 days after the related Receipt Datereceipt thereof, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal then prepayment shall only be required to the difference between the cost of extent any excess Net Cash Proceeds remain after making such repair, restoration prepayment or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and reinvestment during such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 27090-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v)period. If the Borrower has provided plans such prepayment or reinvestment with the written notice contemplated by the prior sentenceNet Cash Proceeds described in Section 3.04(c)(i) or Section 3.04(c)(ii), then until it shall deliver and certify such Net Insurance Proceeds or Net Condemnation Proceeds are needed intention in a certificate from the Financial Officer of the Borrower to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), no later than (A) a certificate signed by two (2) Business Day after the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount receipt of such prepayment Net Cash Proceeds under Section 3.04(c)(i) and (B) to 20 Business Days after the extent practicable, at least three days prior written notice receipt of such prepaymentNet Cash Proceeds under Section 3.04(c)(ii). Each notice Subject to Section 3.05(b), any of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in Net Cash Proceeds remaining after such certificate90-day period, the Borrowers shall completion of such repair or replacement or after the Borrower has discontinued its good faith pursuit of such repairs or replacement will be promptly make an additional applied as a prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessLoan.
Appears in 1 contract
Mandatory Prepayments. The Borrowers In addition to the required payments of principal of the Term Loan B set forth in Section 2.2(c), and any optional payments of principal of the Term Loan B effected under Section 2.3(a) above, the Borrower shall prepay (or Cash Collateralizemake the following required prepayments of the Term Loan B, as applicable) provided below, each such payment to be made to the Obligations as followsAdministrative Agent for the benefit of the Lenders within the time period and in the amounts specified below:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) The Borrower will prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations Term Loan B Facility in an amount equal to the then Effective Amount 100% of the L/C ObligationsNet Cash Proceeds from any Asset Disposition (less any taxes to the extent such taxes are paid) at the times and in the amounts described in the following sentence, and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent and setting forth the calculation of such Net Cash Proceeds. With respect to any Segment maturing during the ninety-day period following such Asset Disposition, the prepayment shall be payable, in an part, upon the maturity of each such Segment, in the order of the maturity thereof, until paid in full; provided, however, that in the event that at the end of such ninety day period the aggregate principal amount equal of such prepayment (the “Prepaid Amount”) is less than 100% of the Net Cash Proceeds from such Asset Disposition (the “Required Amount”), the difference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, further, however, that at the election of the Administrative Agent or the Required Term Loan B Lenders, upon the occurrence of a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall be immediately due and payable without regard to the preceding provisions. Notwithstanding the foregoing, if the aggregate of all Asset Dispositions made during any calendar year do not exceed $1,000,000, no prepayment shall be required with respect to such excessAsset Disposition.
(ii) The Borrowers Borrower will prepay the Term Loan B Facility in an amount equal to 50% of the Net Cash Proceeds from any Equity Issuance and 100% of the Net Cash Proceeds from any Debt Issuance described in Section 11.2(v) at the times and in the amounts described in the following sentence and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent and setting forth the calculation of such Net Cash Proceeds. With respect to any Segment maturing during the ninety-day period following such Equity Issuance or Debt Issuance, the prepayment shall repay be payable, in part, upon the maturity of each Swing Line Loan on such Segment, in the earlier to occur order of the maturity thereof, until paid in full; provided, however, that in the event that at the end of such ninety day period the aggregate amount of such prepayment (Athe “Prepaid Amount”) is less than 100% of the Swing Line Settlement Date occurring after Net Cash Proceeds from such Swing Line Loan is made and Equity Issuance or Debt Issuance (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)“Required Amount”), the Borrowers shalldifference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, immediately after the completion of each sale or other dispositionfurther, prepay the Obligations in the manner set forth in Section 2.06(d)however, in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time election of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at or the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. IfRequired Term Loan B Lenders, at any time after upon the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall occurbe immediately due and payable without regard to the preceding provisions. Notwithstanding the foregoing, then if the Borrowers aggregate of all Equity Issuances made during any calendar year do not exceed $5,000,000, no prepayment shall immediately be required with respect to such Equity Issuances.
(iii) Not later than one hundred eighty (180) days (or such longer period as the Required Term Loan B Lenders may determine) after its receipt of any proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event (and in any event upon its determination not to repair or replace any property subject to such Casualty Event), the Borrower will prepay the outstanding Obligations Term Loan B Facility in an amount equal to 100% of the amount Net Cash Proceeds from such Casualty Event (less any amounts theretofore applied to the repair or replacement of property subject to such Casualty Event) and will deliver to the Administrative Agent, concurrently with such prepayment, a certificate signed by a Financial Officer, in form and substance reasonably satisfactory to the manner described Administrative Agent, setting forth the calculation of such Net Cash Proceeds; provided, however, (i) nothing in this paragraph shall be deemed to limit or otherwise affect any right of the first sentence Administrative Agent herein or in any of this clause the other Credit Documents to receive and hold such proceeds as loss payee and to disburse the same to the Borrower upon the terms hereof or thereof, or any obligation of the Borrower and each of its Subsidiaries herein or in any of the other Credit Documents to remit any such proceeds to the Administrative Agent upon its receipt thereof, and (iii)ii) any and all such proceeds received or held by the Administrative Agent or the Borrower or any of its Subsidiaries during the continuance of an Event of Default (regardless of any proposed or actual use thereof for repair or replacement) shall be applied to prepay the Term Loan B Facility.
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such IndebtednessIntentionally deleted.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar Each year, in beginning with the aggregatefiscal year ending December 31, exceed $25,000,000 for such calendar year2006, the Borrower shall prepay the outstanding Obligations in principal amount of the manner set forth in Section 2.06(d) Term Loan B Facility in an amount equal to 50% of Excess Cash Flow for the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. Ifpreceding fiscal year, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount times and in the manner amounts described in the first following sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall and will deliver to the Administrative Agent, concurrently with the delivery of its Compliance Certificate with respect to such preceding fiscal year, a certificate, signed by a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent, setting forth the calculation of such Excess Cash Flow. With respect to any Segment maturing during the ninety-day period following date of delivery of the calculation of Excess Cash Flow, the prepayment shall be payable, in part, upon the maturity of each such Segment, in the order of the maturity thereof, until paid in full; provided, however, that in the event that at the time end of such ninety day period the aggregate amount of such prepayment (the “Prepaid Amount”) is less than 50% of Excess Cash Flow (the “Required Amount”), the difference between the Required Amount and the Prepaid Amount shall be immediately due and payable; provided, further, however, that at the election of the Administrative Agent or the Required Term Loan B Lenders, upon the occurrence of a Default or Event of Default which has not been cured within the applicable cure period, the entire prepayment amount shall be immediately due and payable without regard to the preceding provisions; provided, further, however, that in the event that the Compliance Certificate referred to in the preceding sentence shall reflect a Leverage Ratio of less than 2.75 to 1.00 for such preceding fiscal year, no prepayment from Excess Cash Flow shall be required under this section. The Administrative Agent shall give each Lender, within one (1) Business Day, telefacsimile notice of each notice of prepayment received by it and described in clauses (i), (ii), (iii) and (iv) of this Section 2.3(b). All mandatory prepayments made pursuant to this Section 2.3(b) shall be applied to installments of principal in inverse order of their maturities (as adjusted to give effect to any prior payments or prepayments of principal). Without limiting the foregoing, in the event that at any time a mandatory prepayment of the Term Loan B Facility would otherwise be required under this Section 2.06(c), (A) a certificate signed by 2.3 but the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) Term Loan B shall be or has been fully paid prior to the extent practicable, at least three days prior written notice application of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount all funds otherwise required to be prepaid was greater so utilized, such amount not utilized to prepay the Term Loan B Facility shall be applied to the prepayment of Revolving Loans and the reduction of the Total Revolving Credit Commitment as provided in Section 3.6. All payments of the Term Loan B shall be applied first to pay all Base Rate Segments before any LIBOR Segment is paid. The provisions of Section 3.6(e) shall apply to each payment or prepayment of a LIBOR Loan made pursuant to this Section 2.3(b) on a day other than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment last day of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessInterest Period applicable thereto.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) If on any day the Obligations as follows:
(i) If, at any time, Revolving Loans exceed the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeAmount (including as a result of a reduction of the Revolving Loan Commitment Amount described in SECTION 6.1.3), the Borrowers Company shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in an amount sufficient to eliminate such excess. If on any day the Stated Amount of the Letters of Credit exceeds the LC Commitment Amount (including as a sufficient amount are then outstanding and (C) otherwiseresult of a reduction of the LC Commitment Amount described in SECTION 6.1.3), the Company shall immediately Cash Collateralize the Obligations outstanding Letters of Credit in an amount equal sufficient to eliminate such excess. If on any day the then Effective Additional Loans exceed the Additional Commitment Amount (including as a result of a reduction of the L/C ObligationsAdditional Commitment Amount described in SECTION 6.1.3), the Company shall immediately prepay Additional Loans in an aggregate principal amount equal sufficient to eliminate such excess.
(iib) The Borrowers So long as no Event of Default exists, all Net Cash Proceeds received by the Company and its Subsidiaries from Asset Sales (other than proceeds realized from Permitted Asset Sales and other than Pre-Petition Non-Encumbered Asset Proceeds) shall repay each Swing Line Loan on be paid, forthwith upon the earlier receipt thereof, to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) Post-Petition Agent to be held as Cash Collateral to secure the Maturity Dateobligations hereunder.
(iiic) IfAt all times when an Event of Default exists, all Net Cash Proceeds received by the Company or any Subsidiary from Asset Sales (other than proceeds realized from Permitted Asset Sales and other than Pre-Petition Non-Encumbered Asset Proceeds) shall be paid, forthwith upon the receipt thereof, to the Post-Petition Agent (x) for application to (and all Cash Collateral held by the Post-Petition Agent may be applied) to the Loans then outstanding (with application pro rata to Additional Loans and Revolving Loans) and (y) to the Cash Collateralization of all obligations arising under all outstanding Letters of Credit (at 105% of the Stated Amount of each outstanding Letter of Credit). After the payment in full of all outstanding Loans and the Cash Collateralization in full of all outstanding Letters of Credit, any remaining Net Cash Proceeds received by the Company or any Subsidiary from Asset Sales (other than proceeds realized from Permitted Asset Sales and other than Pre-Petition Non-Encumbered Asset Proceeds) while an Event of Default exists shall be distributed to the Pre-Petition Agent for distribution to the Pre-Petition Lenders for application to the Revolving Outstandings, Term A Loans and Term B Loans (as such terms are defined under the Pre-Petition Credit Agreement) ratably among the Pre-Petition Lenders (determined on the basis of the total amount of obligations then due and owing to each Pre-Petition Lender under the Pre-Petition Credit Agreement), with application first to fees thereon then due and owing, second to interest thereon then due and owing (including interest thereon accruing from and after the Filing Date), and third to unpaid principal.
(d) If at any time after all or substantially all the Closing Date during any calendar year (including 2007)assets, any Loan Party sells or otherwise disposes all or substantially all the interest of any assets (other than sales permitted under Sections 5.02(c))the Company and its Subsidiaries in the Capital Stock, of all three Construction Business Debtors have been sold to a Person that is not a Debtor, the Borrowers shall, immediately after Debtors shall forthwith Cash Collateralize all obligations under all outstanding Letters of Credit (at 105% of the completion Stated Amount of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) Letter of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iiiCredit).
(ive) If, at any time after After payment in full of the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, obligations arising hereunder (and provision of Cash Collateral pursuant to SECTION 6.2.1(B) to secure the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, obligations hereunder in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount 105% of the sum of (w) the Stated Amount of all Letters of Credit PLUS (x) the amount by which the Stated Amount of all Letters of Credit is less than the LC Commitment Amount PLUS (y) the Revolving Loan Commitment Amount PLUS (z) the Additional Commitment Amount, all remaining Net Cash Proceeds received by the Company and its Subsidiaries from Asset Sales (other than proceeds realized from Permitted Asset Sales and other than Pre-Petition Non-Encumbered Asset Proceeds) shall be paid forthwith upon the receipt thereof, to the Pre-Petition Agent for distribution to the Pre-Petition Lenders for application to the Revolving Outstandings, Term A Loans and Term B Loans (as such excess or such increase in such excess. Notwithstanding terms are defined under the foregoingPre-Petition Credit Agreement) ratably among the Pre-Petition Lenders (determined on the basis of the total amount of obligations then due and owing to each Pre-Petition Lender under the Pre-Petition Credit Agreement), the Borrower shall not be required with application first to make a prepayment pursuant fees thereon then due and owing, second to this clause interest thereon then due and owing (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days including interest thereon accruing from and after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Filing Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent), and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior third to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateunpaid principal.
(vif) The Borrowers All Pre-Petition Non-Encumbered Asset Proceeds shall deliver be paid, forthwith upon the receipt thereof, to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), Post-Petition Agent for application to (Ai) a certificate signed by the chief financial officer payment in full of the Borrowers setting forth obligations arising hereunder and (ii) the provision of Cash Collateral to secure the obligations hereunder in reasonable detail the calculation an aggregate amount equal to 105% of the sum of (w) the Stated Amount of all Letters of Credit PLUS (x) the amount by which the Stated Amount of such prepayment and (B) to the extent practicable, at least three days prior written notice all Letters of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater Credit is less than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans LC Commitment Amount PLUS (and/or, if applicable, y) the Revolving Loan Commitments Commitment Amount PLUS (z) the Additional Commitment Amount; after payment in full of the obligations arising hereunder (and provision of Cash Collateral pursuant to CLAUSE (II) above), all remaining Pre-Petition Non-Encumbered Asset Proceeds received by the Company and its Subsidiaries shall be permanently reduced) in an amount equal paid, forthwith upon the receipt thereof, to the Pre-Petition Agent for distribution to the Pre-Petition Lenders for application to the Revolving Outstandings, Term A Loans and Term B Loans (as such terms are defined under the Pre-Petition Credit Agreement) ratably among the Pre-Petition Lenders (determined on the basis of the total amount of such excessobligations owed to each Pre-Petition Lender under the Pre-Petition Credit Agreement), with application first to fees thereon then due and owing, second to interest thereon then due and owing (including interest thereon accruing from and after the Filing Date), and the Borrowers shall concurrently therewith deliver third to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessunpaid principal.
Appears in 1 contract
Sources: Post Petition Credit Agreement (U S Aggregates Inc)
Mandatory Prepayments. The Borrowers Without relieving Borrower of its --------------------- obligations under Section 2.4.2, Borrower shall be obligated to prepay (or Cash Collateralize, as applicable) the Obligations its Loan as follows:
(ia) IfExcept as described in Section 2.4.3(b), at any timeif the Mortgaged Property or the Property Owner's interests therein is sold, transferred or otherwise disposed of, voluntarily or involuntarily, or if the Effective Amount lien of all Revolving Loansthe Mortgage is released from the Mortgaged Property, Swing Line Loans then, not later than the closing date or effective date of such sale, transfer, disposition or release, Borrower shall repay the Loan, in full, together with the applicable Prepayment Premium, if any.
(b) If there shall occur a Casualty or Condemnation (as such terms are defined in the Mortgage Loan Agreement) in respect of the Mortgaged Property and L/C Obligations then outstanding exceeds as a result thereof the Total Revolving Mortgage Loan Commitment at such timeis prepaid in whole or in part, the Borrowers shall immediately (A) prepay the Swing Line Loans then, to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay that there shall be excess proceeds or awards available following the Revolving Loans application of the proceeds or awards pursuant to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount terms of the L/C ObligationsMortgage Loan Documents, Borrower shall repay the Loan, or a portion thereof, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and available excess proceeds or awards, without any Prepayment Premium. Prepayments required under this subsection (Bb) shall be due on the first Payment Date occurring after the determination under the Mortgage Loan Agreement that the related proceeds or award will be applied to the extent practicableMortgage Loan or, at least if such first Payment Date is within three days prior written notice (3) Business Days of such prepayment. Each notice of prepayment shall specify determination, then on the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in second Payment Date after such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessdetermination.
Appears in 1 contract
Sources: Credit Agreement (Desert Springs Marriott Limited Partnership)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) IfExcept as provided in Section 1.1(a)(iv), at any time the aggregate outstanding balances of the Revolving Loan exceeds the lesser of (A) the Maximum Amount less the aggregate outstanding Swing Line Loan at such time and (B) the Aggregate Borrowing Base less the aggregate outstanding Swing Line Loan at such time, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess. Furthermore, if, at any time, the Effective Amount outstanding balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at to any Borrower exceeds such time, Borrower’s separate Borrowing Base less the Borrowers shall immediately (A) prepay outstanding balance of the Swing Line Loans Loan to such Borrower, the applicable Borrower shall immediately repay its Revolving Credit Advances in the amount of such excess (and, to the extent Swing Line Loans in necessary, provide cash collateral for its Letter of Credit Obligations as described above).
(ii) If a sufficient amount are then outstandingCash Dominion Event shall have occurred and be continuing, (B) then immediately upon receipt by any Credit Party of proceeds of any asset disposition or any sale of Stock of any Subsidiary of such Credit Party, Borrowers shall prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligationsall such proceeds, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur net of (A) the Swing Line Settlement Date occurring after commissions and other reasonable and customary transaction costs, fees and expenses incurred in connection with such Swing Line Loan is made transaction and payable by any Credit Party in connection therewith (in each case, paid to non Affiliates), (B) amounts payable to holders of senior Liens (to the Maturity Dateextent such Liens constitute Permitted Encumbrances hereunder), if any, on the assets so disposed, and (C) transfer taxes plus any applicable reserve for income taxes in accordance with GAAP in connection therewith (“Net Proceeds”). Any such prepayment shall, subject to Section 1.3(b)(iv), be applied in accordance with Section 1.3(c). For the avoidance of doubt, no such mandatory prepayment shall be required if at such time of determination, a Cash Dominion Event shall not have occurred and be continuing.
(iii) If, at If any time after the Closing Date during Credit Party issues Stock or any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets Indebtedness (other than sales Indebtedness permitted under Sections 5.02(c)by Section 6.3), and the Borrowers shallnet cash proceeds received by any Credit Party from such Stock or Indebtedness issuance exceeds $1,000,000 in the aggregate, immediately after no later than the completion Business Day following the date of each sale or other dispositionreceipt of the cash proceeds thereof, the issuing Credit Party shall prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) all such proceeds, net of the Net Proceeds from any underwriting discounts and commissions and other reasonable costs and expenses paid or payable to non Affiliates in connection therewith; provided, that no such sale or disposition; provided that prepayment shall be required, so long as no Event of Default has occurred and is continuing, from the cash portion proceeds of any issuance of Stock by a Credit Party (i) to any director, officer or other employee of such Credit Party pursuant to the stock incentive plan adopted by H&E Delaware prior to, and as in effect on, the Closing Date, (ii) as consideration for any Person (other than any Affiliate of a Credit Party) providing permitted Indebtedness under Section 6.3, (iii) to any other Credit Party, (iv) as consideration to any Person (other than an Affiliate) selling assets or Stock in any Permitted Acquisition or (v) if such proceeds are used within ninety (90) days after receipt thereof to pay the consideration for any a Permitted Acquisition (or contracted to be used within such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment day period pursuant to this clause a legally binding agreement and actually used within ninety (90) days thereafter). Any such prepayment shall, subject to Section 1.3(b)(iv), be applied in accordance with Section 1.3(c).
(iv) In the event that Section 1.3(b)(i), (ii) or (iii) with respect shall require any prepayment to any sale (be made on a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion day other than an Interest Payment Date, then upon receipt of such Net Proceeds in replacement assets prepayment and to the extent requested by any Borrower, Agent shall hold such amount as cash collateral (Aprovided that the Borrower delivering the same shall have executed and delivered such documents as Agent shall have requested in connection with such cash collateral) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. Ifand, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a so long as no Default or Event of Default shall occurhave occurred and be continuing, then shall not apply such cash collateral to the Borrowers shall immediately prepay prepayment under the outstanding Obligations in the amount and in the manner described in the first sentence applicable paragraph of this clause (iii).
(iv) If, at any time after Section 1.3 until the Closing next succeeding Interest Payment Date, any Loan Party issues or incurs any Indebtedness . Such cash collateral shall be invested in Cash Equivalents as directed by such Borrower in accordance with such documents. Interest earned on such cash collateral shall accrue for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) account of the Net Proceeds Borrower providing the same, shall constitute additional cash collateral and (assuming no Default or Event of Default shall be continuing) shall be, to the extent remaining, applied to such Indebtednessprepayment on such next succeeding Interest Payment Date.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added Notwithstanding anything to the Net Insurance Proceeds and Net Condemnation Proceeds received by a contrary contained herein or in any other Loan Party (Document, so long as the LKE Master Exchange Agreement is in effect or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearany LKE Transaction is outstanding, the Borrower Borrowers shall promptly prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to all LKE Proceeds received by any Credit Party or the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower LKE Qualified Intermediary and shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited comply with the Administrative Agent good funds equal cash management provisions related to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent LKE Joint Accounts as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Annex C.
Appears in 1 contract
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, Collective Facilities at any time, the Effective Amount of all Revolving Loans, Swing Line Loans times and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth below in Section 2.06(d), the respective amounts set forth in each case, in an aggregate principal amount equal to eighty-five percent the following clauses (85%i) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (Bii) (the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause “Mandatory Prepayment Funds”):
(Ai) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in In the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or any Material Asset Sale occurring during a Default or Event of Default shall occurLeverage Trigger Period, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) within 3 Business Days following the date end of receipt the applicable Reinvestment Period (each a the “Receipt Repayment Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the Collective Facilities in an aggregate amount equal to all Net Cash Proceeds resulting from such Material Asset Sale; provided, however, that the amount of the required prepayments under this clause (i) shall be reduced first by, for any Material Asset Sale individually, the amount of any Reinvestments up to the amount of such Net Cash Proceeds made during the 6-month period immediately following the closing of such Material Asset Sale (the “Reinvestment Period”) and second by, for all Material Asset Sales collectively, the first $100,000,000 of Net Cash Proceeds above any such Reinvestments resulting from such Material Asset Sales; provided, however, that (1) if the applicable Repayment Date is not during a Leverage Trigger Period, then no Mandatory Prepayments shall be required with respect to such Material Asset Sale pursuant to this Section 2.07(c)(i), and (2) if, on the applicable Repayment Date, a Subsidiary of the Borrower shall be a party to a binding contract for the purchase of an Unencumbered Property executed during the applicable Reinvestment Period, then the applicable Reinvestment Period shall be extended for a period of 60 days upon Borrower’s notice to the Administrative Agent, which notice shall be accompanied by a certified copy of the applicable purchase contract, but in no case shall a single Reinvestment Period be so extended more than once; and
(ii) In the case of any Refinancing Debt incurred during a Leverage Trigger Period, within 3 Business Days following incurrence of such Refinancing Debt, the Borrower shall prepay the Collective Facilities in an aggregate amount equal to all Net Cash Proceeds resulting from such Refinancing Debt. The Mandatory Prepayment Funds shall first be applied to the Collective Facilities on a pro rata basis based on the principal amount, as of the date of the applicable prepayment, of outstanding Obligations Advances (as such term is defined herein or in the manner set forth in Section 2.06(dConsolidated Credit Agreement, as applicable) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excessMandatory Commitment Reduction. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days Any Mandatory Prepayment Funds remaining after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in applying an amount equal to the amount of such excess, and Mandatory Commitment Reduction as described in the Borrowers immediately preceding sentence shall concurrently therewith deliver be applied to the Administrative Agent a certificate signed by outstanding Revolving Facility Advances (as such term is defined in the chief financial officer Consolidated Credit Agreement). Any Mandatory Prepayment Funds remaining after payment of all outstanding Revolving Facility Advances (as such term is defined in the Consolidated Credit Agreement) shall be deposited into the Cash Collateral Account (as such term is defined in the Consolidated Credit Agreement) up to the outstanding Letter of Credit Exposure (as such term is defined in the Consolidated Credit Agreement) as security for the Obligations (as such term is defined herein or in the Consolidated Credit Agreement) and such funds shall be disbursed in accordance with Section 8.04 of the Borrowers demonstrating the derivation of the additional amount resulting in such excessConsolidated Credit Agreement mutatis mutandis.
Appears in 1 contract
Sources: Senior Unsecured Term Loan Agreement (LaSalle Hotel Properties)
Mandatory Prepayments. The Borrowers (a) Subject to the Intercreditor Agreement and clause (c) below, upon receipt by the Borrower or any Loan Party of Net Cash Proceeds the Borrower shall immediately prepay the Loan in an amount equal to 100% of such Net Cash Proceeds; provided, however, that (i) no prepayment from Net Cash Proceeds shall be permitted if the First Lien Available Credit would be less than $40,000,000 after giving effect to such prepayment, (ii) upon receipt by the Borrower or any other Loan Party of Net Cash CollateralizeProceeds arising from any Loan Party's receipt of US Tax Receivable, as applicable) the Obligations such Net Proceeds shall be applied as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingfirst, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver First Lien Loans to the Administrative Agentextent that the First Lien Available Credit is less than $40,000,000, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) second, to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was First Lien Available Credit is greater than the amount set forth in such certificate$40,000,000, the Borrowers Borrower shall promptly make an additional prepayment prepay the Loan and (iii) upon receipt by the Borrower or any other Loan Party of Net Cash Proceeds arising from any Asset Sale permitted under Section 8.4(i), such Net Cash Proceeds shall be applied as follows:
(A) first, the Borrower shall immediately prepay that portion of the outstanding First Lien Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reducedand provide cash collateral in respect of First Lien Letters of Credit) in an amount equal to that portion of the amount First Lien Available Credit created solely by the inclusion of the assets subject to such Asset Sale in the borrowing base under the First Lien Credit Agreement immediately prior to the consummation of such excessAsset Sale; (B) second, the Borrower shall apply the remaining balance of Net Cash Proceeds after giving effect to the application of such proceeds made under clause (A) above, to prepay the Loan; provided, however, that no prepayment from Net Cash Proceeds under this clause (B) shall be permitted if the First Lien Available Credit would be less than $40,000,000 after giving effect to such prepayment, and (C) third, if permitted under the Borrowers First Lien Credit Agreement, the Borrower or such Loan Party shall concurrently therewith deliver be entitled to the Administrative Agent a certificate signed by the chief financial officer retain any remaining Net Cash Proceeds.
(b) Together with any prepayment of the Borrowers demonstrating Loan pursuant to clause (a) above, the derivation Borrower shall also pay the Prepayment Premium, if any, calculated at the time of such prepayment.
(c) Notwithstanding the additional amount resulting in foregoing, no mandatory prepayment under this Section 2.6 shall be required if such excessprepayment is otherwise prohibited under the First Lien Credit Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Tecumseh Products Co)
Mandatory Prepayments. The Borrowers shall prepay (a) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Collateralize, as applicable) the Obligations as follows:
Proceeds arising (i) Iffrom an Asset Sale, at any timeProperty Loss Event or Debt Issuance, the Effective Amount Borrower shall immediately prepay the Loans (or provide cash collateral in respect of all Revolving Loans, Swing Line Loans Letters of Credit) in an amount equal to 100% of such Net Cash Proceeds and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time(ii) from an Equity Issuance, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to 100% of such Net Cash Proceeds. Subject to the extent provisions of Section 2.13(g) (Payments and Computations), any such mandatory prepayment shall be applied as follows: first, to repay the outstanding principal balance of the Swing Line Loans until such Swing Loans shall have been repaid in a sufficient amount are then outstandingfull; second, (B) then prepay to repay the outstanding principal balance of the Revolving Loans to the extent until such Revolving Loans shall have been paid in a sufficient amount are then outstanding full; and (C) otherwisethen, Cash Collateralize the if an Event of Default shall have occurred and be continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to the then Effective Amount 105% of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur Letter of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)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.
(b) If at any time, in each case, in an the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to eighty-five percent (85%) such excess. If any such excess remains after repayment in full of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence aggregate outstanding Swing Loans and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoingRevolving Loans, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing provide cash collateral for the acquisition Letter of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Credit Obligations in the manner set forth in Section 2.06(d), 9.3 (Actions in each case, in an aggregate principal amount equal to one hundred percent (100%) Respect of the Net Proceeds Letters of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(dCredit) in an amount equal to 105% of such excess.
(c) The Borrower hereby irrevocably waives the aggregate right to direct the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and shall, except as provided in Section 2.13(g) (Payments and Computations), apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the sum Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such excess or Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees CREDIT AGREEMENT CONSTAR INTERNATIONAL INC. so to apply such increase in such excess. Notwithstanding the foregoing, funds and the Borrower consents to such application. If (i) following such application or (ii) after all Letters of Credit shall not have expired or be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises fully drawn and all Revolving Credit Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable, then the Administrative Agent shall cause any remaining funds in writing within four the Cash Collateral Account to be paid at the written direction of the Borrower (4or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto).
(d) Business Days Notwithstanding the foregoing or any other provisions of this Agreement, proceeds of collateral securing the Obligations (as defined in the Existing Credit Agreement) may be used as provided in the Orders; provided, that no such cash collateral may be so applied from and after the related Receipt Date that it or another Loan Party intends earlier to repair, restore or replace of (i) the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement date that is executed by a Loan Party and the relevant counterparty(ies) within 90 45 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after date of entry of the related Receipt Date Interim Order and (Cii) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repairJanuary 31, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date2009.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) IfThe Borrower shall, at any time, the Effective Amount within 10 business --------------------- days of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately receipt of Net Cash Proceeds (A) prepay by the Swing Line Loans to Parent or the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date issuance by the Parent or the Borrower of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) Specified Equity or (B) of by the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearParent, the Borrower shall or PPL Energy Supply from the issuance by the Parent, the Borrower or PPL Energy Supply of Specified Debt, prepay the an aggregate outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate principal amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excessNet Cash Proceeds (or, if the CSFB Facility is outstanding, prepay Loans hereunder and loans thereunder, on a ratable basis, based on the Borrowers total outstanding principal amounts thereof). The provisions set forth in (S)(S)3.2(a)(iii) and (iv) shall concurrently therewith deliver be applicable to the Administrative Agent a certificate signed by the chief financial officer prepayments made under this (S)(S)3.2(b).
(ii) The Borrower shall, on each Business Day, prepay an aggregate principal amount of the Borrowers demonstrating the derivation Loans comprising part of the additional same Borrowings, in an amount resulting equal to the amount by which the aggregate principal amount of the outstanding Loans exceeds the Total Commitment on such Business Day.
(iii) The Borrower shall, on each date on which the Borrower shall have voluntarily prepaid loans outstanding under the CSFB Facility, prepay an aggregate principal amount of the Loans hereunder comprising part of the same Borrowings, in an aggregate amount comparable to the amount of such excessprepayments under the CSFB Facility." It is hereby further agreed by you and us that (S)5.3 of the Revolving Credit Agreement shall be amended in full to read as follows:
Appears in 1 contract
Sources: Revolving Credit Agreement (PPL Electric Utilities Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any timeIn the event of the termination of all the Revolving Commitments, the Effective Amount Borrowers, jointly and severally, shall, on the date of such termination, repay or prepay all outstanding Revolving Loans, Swing Line Loans and L/C Obligations Swingline Loans and either (A) replace all outstanding Letters of Credit or (B) Cash Collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i).
(ii) In the event of any partial reduction of the Revolving Commitments by the Borrowers, then outstanding exceeds (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Administrative Borrower and the Revolving Lenders of the Total Revolving Loan Commitment Exposure after giving effect thereto and (y) if the Total Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then the Borrowers, jointly and severally, shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i) in an aggregate amount sufficient to eliminate such excess.
(iii) If at any time the Total Revolving Exposure exceeds the Revolving Commitments at such time, the Borrowers shall Borrowers, jointly and severally, shall, without notice or demand, immediately (A) first, repay or prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingSwingline Loans, (B) then second, repay or prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then Loans, and third, replace outstanding and (C) otherwise, Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the Obligations procedures set forth in Section 2.18(i) in an aggregate amount equal sufficient to eliminate such excess.
(iv) In the then Effective event that the aggregate Dollar Amount of the L/C ObligationsLC Exposure exceeds the LC Commitment then in effect, the Borrowers, jointly and severally, shall, without notice or demand, immediately replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section2.18(i) in an aggregate amount sufficient to eliminate such excess.
(v) No later than the earlier of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section5.01(a), the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to 5075% of Excess Cash Flow for the Excess Cash Flow Period then ended; provided that the aggregate principal amount of optional prepayments of Term Loans made pursuant to Section2.10(a) (and including any Term Loans prepaid pursuant to a Discounted Prepayment Offer(otherthaninconnectionwiththeSecond Amendment Prepayment), but in the case of a Discounted Prepayment Offer, limited to the amount of cash actually expended to purchase principal of such excessTerm Loans) and the aggregate principal amount of optional prepayments of Revolving Loans (but only to the extent accompanied by a permanent reduction in the Total Revolving Commitments), in each case made during such Excess Cash Flow Period with Internally Generated Funds shall reduce on a dollar- for-dollar basis the amount of such mandatory prepayment otherwise required pursuant to this Section 2.10(b)(v) in respect of such Excess Cash Flow Period.
(iivi) The Borrowers Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale or Casualty Event by any Restricted Party (other than Net Cash Proceeds of less than $5,000,000 in the aggregate in any fiscal year of the Administrative Borrower), the Borrowers, jointly and severally, shall repay each Swing Line Loan (subject to Section 2.10(h)) apply 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(d); provided that: (x) so long as no Default shall then exist or would arise therefrom, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be reinvested (or committed to be reinvested) in fixed or capital assets of any Borrower or any Subsidiary Guarantor (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in a vessel (or vessels) that will become a Collateral Vessel (or Collateral Vessels)) within 12 months following the date of such Asset Sale or Casualty Event, as applicable (which Officer’s Certificate shall set forth the estimates of the Net Cash Proceeds to be so expended); provided that, if the property subject to such Asset Sale or Casualty Event constituted Collateral or Equity Interests in a Specified Joint Venture, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the First Priority perfected Lien (subject to Permitted Liens or, in the case of any Vessels, Permitted Collateral Vessel Liens) of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10 and the preceding proviso in the case of the sale of any Equity Interests in any Specified Joint Ventures; and (y) if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if committed to be reinvested pursuant to a legally binding commitment within such 12-month period and not so reinvested within six months thereafter), such unused portion shall be applied on the earlier last day of such period as a mandatory prepayment as provided in this Section 2.10(b)(vi); and provided, further, that (x) so long as no Default then exists or would result therefrom and (y) if the Net Cash Proceeds of any Asset Sales and/or Casualty Events exceed $10,000,000 in the aggregate, such Net Cash Proceeds shall be deposited in a Deposit Account (a “Reinvestment Proceeds Account”) of the Administrative Borrower with the Administrative Agent (or another Deposit Account Bank reasonably satisfactory to occur the Administrative Agent) pursuant to a cash collateral arrangement in form and substance reasonably satisfactory to the Administrative Agent (and subject to a Deposit Account Control Agreement) whereby such Net Cash Proceeds shall be disbursed to the Administrative Borrower from time to time as needed to pay actual costs incurred by it or the applicable Subsidiary Guarantor in connection with the replacement or restoration of the respective properties or assets (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in connection with the reinvestment in or purchase of a Collateral Vessel (or Collateral Vessels)) (pursuant to such certification requirements as may be reasonably established by the Administrative Agent) (it being understood and agreed that at any time while an Event of Default has occurred and is continuing, the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Administrative Borrower to, follow said directions) to apply any or all proceeds then on deposit in such Reinvestment Proceeds Account to the repayment of the Secured Obligations).; and provided, further, that (A) so long as no Event of Default shall then exist or would arise therefrom, such Net Cash Proceeds from the Swing Line Settlement Specified Asset Sales and Specified Sale and Leaseback Transaction shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have, within 90 days after the Second Amendment Effective Date, (x) applied such Net Cash Proceeds to consummate the SPV VLCC Transactions and (y) delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds have been so applied and invested within 90 days following the Second Amendment Effective Date occurring after such Swing Line Loan is made (which Officer’s Certificate shall describe in reasonable detail the Net Cash Proceeds so applied and invested) and (B) if all or any portion of such Net Cash Proceeds are not so used to consummate the Maturity DateSPV VLCC Transactions within such 90 day period, such unused portion shall be applied and/or reinvested as (and to the extent) required or permitted by the immediately preceding proviso (and within the applicable time periods set forth therein).
(iiivii) If, at any time after Not later than one Business Day following the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes receipt of any assets (other than sales permitted under Sections 5.02(c))Net Cash Proceeds of any Debt Issuance by any Restricted Party, the Borrowers shallBorrowers, immediately after the completion of each sale or other dispositionjointly and severally, prepay the Obligations shall (subject to Section 2.10(h)) make prepayments in the manner set forth in accordance with Section 2.06(d), in each case, 2.10(d) in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90100% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Cash Proceeds.
(ivviii) If, at Upon the incurrence or issuance by any time after the Closing Date, Borrower of any Loan Party issues Refinancing Notes or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted IndebtednessSpecified Refinancing Term Loans, the Borrowers shallBorrowers, immediately after jointly and severally, shall (subject to Section 2.10(h)) prepay an aggregate principal amount of the applicable Class or Classes of Term Loans that are to be refinanced with the proceeds of such issuance Refinancing Notes or incurrence, prepay the outstanding Obligations Specified Refinancing Term Loans in the manner set forth in Section 2.06(d), in each case, accordance with Section2.10(d) in an aggregate principal amount equal to one hundred percent (100%) % of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Cash Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datetherefrom.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) On or before December 30, 2011, Borrower shall prepay (the Term Loan without penalty in an amount not less than $100,000, which prepayment shall be applied to reduce the unpaid principal of the Term Loan and shall be applied on the most remote principal installment or Cash Collateralizeinstallments of the Term Loan then unpaid. If Borrower sells its property, as applicable) and the Obligations as follows:leasehold interest in the restaurant, located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Parkway in Littleton, Colorado on or before December 30, 2011, then upon receipt of such $100,000 prepayment on or before December 30, 2011, Bank shall release, terminate and satisfy its security interest in the property located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Parkway in Littleton, Colorado.
(ib) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans Term Loan without penalty, together with any amounts due to the extent Swing Line Loans in a sufficient amount are then outstandingBank under any interest rate swap agreement between Borrower and Bank, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount net proceeds from any sale of any stock or other equity interest in Borrower, which proceeds shall be paid directly to Bank. Each such prepayment of the L/C Obligations, Term Loan (i) shall be due and payable immediately upon such sale of any stock or other equity interest in an aggregate Borrower and (ii) shall be applied to reduce the unpaid principal amount equal to such excessof the Term Loan and shall be applied on the most remote principal installment or installments of the Term Loan then unpaid.
(iic) The Borrowers Borrower's prepayment obligations set forth in this Section 1.5 shall repay each Swing Line Loan be without prejudice to Borrower's obligations under any interest rate swap agreement between Borrower and Bank, which shall remain in full force and effect subject to the terms of such interest rate swap agreement (including provisions that may require a reduction, modification or early termination of a swap transaction, in whole or in part, in the event of such prepayment, and may require Borrower to pay any fees or other amounts for such reduction, modification or early termination), and no such fees or amounts shall be deemed a penalty hereunder or otherwise."
3. Sections 4.9(a), 4.9(b) and 4.9(c) are hereby amended and restated to read in their entirety as follows:
(a) Net Worth not less than $2,500,000 at any time on or after December 31, 2012, with "Net Worth" defined as the earlier aggregate of total stockholders' equity plus debt subject to occur a subordination agreement in favor of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Dateacceptable to Bank, less any intangible assets, all determined for GTR on a consolidated basis.
(iiib) If, Total Liabilities divided by Tangible Net Worth not greater than 3.0 to 1.0 at any time after the Closing Date during any calendar year (including 2007)time, any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long with "Total Liabilities" defined as the cash portion aggregate of the consideration current liabilities and non-current liabilities less debt subject to a subordination agreement in favor of and acceptable to Bank, and with "Tangible Net Worth" as defined above, all determined for any such disposed assets is GTR on a consolidated basis.
(c) EBITDA Coverage Ratio not less than 90% (i) 0.30 to 1.00 as of all consideration for such disposed assets only the cash portion end of such Net Proceeds at the time fiscal quarter ending June 30, 2012, (ii) 0.70 to 1.00 as of sale will be counted for purposes the end of any prepayment required under this sentence the fiscal quarter ending September 30, 2012, and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) 0.90 to 1.00 as of the end of each fiscal quarter thereafter, determined on a rolling 4-quarter basis with respect to "EBITDA" defined as net profit before tax plus interest expense payable in cash (net of capitalized interest expense), depreciation expense and amortization expense, less dividends, with "EBITDA Coverage Ratio" defined as EBITDA divided by the aggregate of total interest expense payable in cash plus the prior period current maturity of long-term debt (but specifically excluding any sale (a “Relevant Sale”prepayments required by Section 1.5 above) if and the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion prior period current maturity of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant debt subject to a purchase contract providing subordination agreement in favor of and acceptable to Bank, all determined for the acquisition of such replacement assets that GTR on a consolidated basis."
4. Section 6.1(d) is executed by such Borrower hereby amended and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior restated to the acquisition of the related replacement assets, the 90 or 270-day period provided read in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent its entirety as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.follows:
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) Not later than the fifth Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay (or Cash Collateralize, as applicable) the Obligations as follows:outstanding Term Loans in accordance with Section 2.13(g).
(ib) If, at In the event and on each occasion that any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately Equity Issuance (A) prepay the Swing Line Loans other than any Equity Issuances to the extent Swing Line the Net Cash Proceeds of the same are used to make permanent repayments or repurchases of Term Loans by the Borrower), occurs, the Borrower shall, substantially simultaneously with (and in a sufficient amount are then outstandingany event not later than the third Business Day next following), (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in apply an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) 50% of the Net Cash Proceeds from therefrom to prepay outstanding Term Loans in accordance with Section 2.13(g) provided, that, with respect to the Net Cash Proceeds of any such sale or disposition; provided that so long as Equity Issuances, if (x) the cash portion Borrower shall deliver a certificate of a Financial Officer to the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds Administrative Agent at the time of sale will be counted for purposes receipt thereof (or promptly thereafter) setting forth the Borrower’s intent to invest such proceeds in Capital Expenditures permitted herein within 6 months of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion receipt of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale proceeds and (By) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or no Event of Default shall occur, then have occurred and shall be continuing at the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoingcertificate, the Borrower shall not be required to make a apply such amounts to the prepayment of the outstanding Term Loans pursuant to this clause (vb) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived except to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds proceeds are in fact not so invested or contractually committed to be utilized so invested by the end of such 6 month period, at which time such proceeds shall be applied to repair, restore or replace such assets the prepayment of the outstanding Term Loans pursuant to one this clause (b); provided further that (x) if any portion of such proceeds are not so used within such 6 month period but within such 6-month period are contractually committed to be used, then upon the termination of such contract (or more contracts providing for if any such repairproceeds are not so used within 18 months of initial receipt), restoration such remaining portion shall be applied to the prepayment of the outstanding Term Loans pursuant to this clause (b) as of the earlier of the date of such termination or replacement that expiry of such 18-month period and (y) such proceeds shall be applied to the prepayment of the outstanding Term Loans pursuant to this clause (b) notwithstanding any investment notice if there is executed by an Event of Default at the time of a Loan Party and proposed investment unless such proposed investment is made pursuant to a binding commitment entered into at a time when no Event of Default was continuing.
(c) No later than the relevant counterparty(iesearlier of (i) within 90 days after the related Receipt Dateend of each fiscal year of the Borrower, (B) such repaircommencing with the fiscal year ending on December 31, restoration or replacement is completed within 270 days after the related Receipt Date 2012, and (Cii) the Net Insurance Proceeds or Net Condemnation Proceeds date on which the financial statements with respect to such period are sufficient delivered pursuant to defray the entire cost of such repair, restoration or replacement or if notSection 5.04(a), the Borrower has deposited shall apply an amount equal to 100% of Excess Cash Flow for the fiscal year then ended to prepay outstanding Term Loans in accordance with Section 2.13(g).
(d) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(g).
(e) In the event that any Loan Party shall receive Net Cash Proceeds from any Extraordinary Receipt, such Loan Party shall, substantially simultaneously with (and in any event not later than the Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(g).
(f) In the event that the Borrower, in its sole discretion, determines to permanently reduce the Collateral Posting Amount other than in connection with the Administrative Agent good funds equal to reduction of the difference between commitments under or termination of the cost Indebtedness incurred pursuant to, Sections 6.01(h) and (i), the Borrower shall, not later than the third Business Day following such determination, apply 100% of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior reduction to the completion prepayment of the corresponding repair, restoration or replacement, the 90 or 270-day period provided outstanding Term Loans in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (Aaccordance with Section 2.13(g)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vig) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied (i) in direct order of maturity with respect to the next four remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11(a) and (ii) pro rata thereafter.
(h) The Borrowers Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c)2.13, (Ai) a certificate signed by the chief financial officer a Financial Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (Bii) to the extent practicable, at least three days Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Term Loan being prepaid and the Type and principal amount of each Term Loan (or portion thereof) to be prepaid. In All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty (except as provided in Section 2.12(d)), and shall be accompanied by accrued and unpaid interest on the event that the Borrowers shall subsequently determine that the actual principal amount required to be prepaid was greater than to but excluding the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment date of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excesspayment.
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc.)
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations Loans as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers Borrower shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring date ten Business Days after such Swing Line Loan is made and (B) the Revolving Loan Maturity Date.
(iii) If, at any time after the Closing Date If during any calendar fiscal year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c))this Agreement, the Borrowers aggregate cumulative amount of Designated Asset Sale Proceeds for such fiscal year exceeds $1,000,000, the Borrower shall, immediately after the completion of each sale or other dispositiondisposition which results in such an excess or an increase in such an excess, prepay the outstanding Term Loans (in accordance with the provisions of Section 2.07(d)) and, if the Term Loans shall have been paid in full, (A) prepay the Swing Line Loans to the extent Swing Line Loans are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the manner set forth in Section 2.06(d), in each casethen Effective Amount of the L/C Obligations, in an aggregate principal amount equal to eighty-five one hundred percent (85100%) of the Net Proceeds from any such sale excess or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for increase in such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedexcess. Notwithstanding the foregoing, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale or other disposition (a “Relevant Sale”) if the Borrowers advise Borrower advises the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower it intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such on which consideration is received in connection with the Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or an Event of Default shall occur, then the Borrowers Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, the Borrower or any Loan Party Subsidiary of the Borrower issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers Borrower shall, immediately after such issuance or incurrence, prepay the outstanding Term Loans (in accordance with the provisions of Section 2.07(d)) and, if the Term Loans shall have been paid in full, (A) prepay the Swing Line Loans to the extent Swing Line Loans are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the manner set forth in Section 2.06(d), in each casethen Effective Amount of the L/C Obligations, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to Closing Date, the completion Borrower or any Subsidiary of the corresponding repair, restoration Borrower issues or replacementsells any Equity Securities, the 90 Borrower shall, immediately after such issuance or 270-day period provided sale, prepay the outstanding Term Loans (in clause accordance with the provisions of Section 2.07(d)) and, if the Term Loans shall have been paid in full, (A) or prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding, (B) of then prepay the preceding sentence shall elapse without execution of Swing Line Loans to the related contract (extent Swing Line Loans in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide a sufficient amount are then outstanding and deposit the funds and proceeds required under clause (C) aboveotherwise, or Cash Collateralize the Obligations in an Event amount equal to the then Effective Amount of Default shall occurthe L/C Obligations, then in an aggregate principal amount equal to fifty percent (50%) of the Net Proceeds of such Equity Securities.
(vi) Not later than 120 days after the end of each fiscal year beginning with the fiscal year ending on December 31, 2004, the Borrower shall immediately prepay the outstanding Term Loans (in accordance with the provisions of Section 2.07(d)) and, if the Term Loans shall have been paid in full, (A) prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding, (B) then prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an aggregate amount equal to 75% of Excess Cash Flow for such fiscal year; provided, however, that if (I) at any time, the amount Leverage Ratio of the Borrower and its Subsidiaries as reflected in the manner described most recently delivered Compliance Certificate is less than or equal to 3.5:1.0 and greater than 3.0:1.0, then the percentage set forth above shall be reduced to 50% and (II) if at any time, the Leverage Ratio of the Borrower and its Subsidiaries as reflected in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentencemost recently delivered Compliance Certificate is less than or equal to 3.0:1.0, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds percentage set forth above shall be held by the Administrative Agent as collateral. No right reduced to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date0%.
(vivii) If at any time during a Cleandown Period, either (a) the Borrower is in violation of the covenant contained in Section 5.03(e) or (b) it is not possible for the Borrower to comply with the covenant contained in Section 5.03(e), the Borrower shall immediately prepay the outstanding Swing Line Loans and Revolving Loans in an aggregate amount equal to the amount by which the Swing Line Loans and Revolving Loans outstanding at such time exceed the applicable Cleandown Amount at such time.
(viii) The Borrowers Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c2.07(c), (A) a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days five Business Days’ prior written notice of such prepayment. The Administrative Agent shall promptly notify each applicable Lender of any such notice or prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers Borrower shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers Borrower shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers Borrower shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer a Responsible Officer of the Borrowers Borrower demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (a) If at any time the sum of the aggregate Outstanding Revolving Credit Loans, Outstanding Term Loans and the amount of all Letter of Credit Liabilities causes the covenants set forth in §9.1 or Cash Collateralize§9.2 to be violated, then the Borrower shall, within five (5) Business Days of such occurrence, immediately pay the amount sufficient to cause the covenants set forth in §9.1 and §9.2 to no longer be violated to the Agent for the respective accounts of the Lenders, as applicable, for application to the Revolving Credit Loans and Term Loans as provided in §3.4, together with any additional amounts payable pursuant to §4.7.
(b) Simultaneously with the Obligations sale, conveyance, transfer, removal pursuant to 7.19(h) or other disposition of any Unencumbered Pool Property (or of the Borrower’s and/or its Subsidiaries interest therein, as follows:applicable):
(i) If, at any time(x) if the aggregate Unencumbered Pool Value is less than the Target Pool Size in effect immediately following the consummation of such disposition, the Effective Amount Borrower shall make a prepayment in the amount necessary to cause the Unencumbered Pool Leverage Ratio to be equal to or less than forty-five percent (45%), and (y) if the aggregate Unencumbered Pool Value is equal to or greater than the Target Pool Size in effect immediately following the consummation of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timedisposition, the Borrowers Borrower shall immediately (A) prepay make a prepayment in the Swing Line Loans amount necessary to cause the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans Unencumbered Pool Leverage Ratio to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount be equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.or less than fifty percent (50%); and
(ii) The Borrowers shall repay each Swing Line Loan on if the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) sum of the Net Proceeds from any such sale or disposition; provided that so long aggregate Outstanding Loans and the amount of all Letter of Credit Liabilities exceeds the Unencumbered Pool Availability, as the cash portion a result of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required limitations imposed under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A§7.19(d)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until necessary to cause such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the Outstanding amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required equal to be prepaid was greater or less than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessUnencumbered Pool Availability.
Appears in 1 contract
Sources: Credit Agreement (Monogram Residential Trust, Inc.)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, Immediately upon receipt of notice by Agent that the Effective Amount outstanding principal balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding the Term Loan exceeds the Total Revolving then extant Maximum Term Loan Commitment at such timeAmount, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans Term Loan in a sufficient amount are then outstanding, accordance with CLAUSE (BD) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations below in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on Immediately upon any voluntary or involuntary sale or disposition by Parent or any of its Subsidiaries of property or assets (other than sales or dispositions which qualify as Permitted Dispositions under clauses (b), (c), (e), and (g)) of the earlier to occur definition of Permitted Dispositions):
(A) If the Swing Line Settlement Date occurring after proceeds are from the sale or disposition of any Eligible Equipment, Borrowers shall prepay the outstanding Obligations in accordance with clause (d) below with the Net Cash Proceeds received by such Swing Line Loan is made Person in connection with such sale or disposition in an amount equal to the lesser of (i) 100% of such Net Cash Proceeds, and (ii) 100% of the Gross Liquidation Value of such Eligible Equipment based on the most recent appraisal of such Eligible Equipment. Any remaining Net Cash Proceeds shall be applied as follows: (A) so long as no Default or Event of Default shall have occurred and be continuing, (x) 50% of such Net Cash Proceeds shall be retained by Borrower, and (y) the remaining Net Cash Proceeds shall be used by Borrowers to prepay the outstanding Obligations in accordance with clause (d) below, and (B) otherwise, 100% of such Net Cash Proceeds shall be used by Borrowers to prepay the Maturity Dateoutstanding Obligations in accordance with clause (d) below.
(B) If the proceeds are from the sale or disposition of any other property or assets, Borrowers shall prepay the outstanding Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such sale or disposition if the aggregate amount of Net Cash Proceeds received by Parent and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such sales or dispositions shall exceed $150,000 in any fiscal year. Nothing contained in this subclause (ii) shall permit Parent or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with SECTION 7.4.
(iii) If, at Immediately upon the receipt by Parent or any time after of its Subsidiaries of any Extraordinary Receipts in excess of $50,000 individually or $250,000 in the Closing Date aggregate during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets Fiscal Year (other than sales permitted under Sections 5.02(c)Extraordinary Receipts from the Asiana Claim), Borrowers shall prepay the Borrowers shalloutstanding Obligations in accordance with clause (d) below in an amount equal to 100% of such Extraordinary Receipts, immediately after net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the completion issuance or incurrence by Parent or any of each its Subsidiaries of any Indebtedness (other than Indebtedness referred to in CLAUSES (A), (B), (C), (D), OR (E) of SECTION 7.1), or the sale or other dispositionissuance by Parent or any of its Subsidiaries of any shares of its Capital Stock, Borrowers shall prepay the outstanding principal of the Obligations in the manner set forth in Section 2.06(d), in each case, accordance with clause (d) in an aggregate principal amount equal to eighty-five percent (85%) 100% of the Net Cash Proceeds from received by Parent or its Subsidiaries in connection with such sale, issuance, or incurrence. The provisions of this subsection (iv) shall not be deemed to be implied consent to any such sale sale, issuance, or disposition; provided that so long as incurrence otherwise prohibited by the cash portion terms and conditions of this Agreement.
(v) If Parent or any of its Subsidiaries has any Excess Cash Flow for any fiscal year (the "RELEVANT FISCAL YEAR"), commencing with the fiscal year ending February 29, 2004, Borrowers shall prepay the outstanding Obligations in accordance with clause (d) below in an amount (the "EXCESS CASH FLOW AMOUNT") equal to 75% of such Excess Cash Flow. Such Excess Cash Flow shall be paid on or before the first day of the consideration for any such disposed assets is not less than 90% second fiscal quarter of all consideration for such disposed assets only the cash portion of such Net Proceeds at fiscal year following the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be countedRelevant Fiscal Year. Notwithstanding the foregoing, the (x) Borrowers shall not be required to make a prepayment pursuant prepay the Obligations with Excess Cash Flow if there are any Borrowings during (i) the last 5 days of Parent's first fiscal quarter of its fiscal year immediately following the Relevant Fiscal Year, or (ii) the last 20 Business Days of the Excess Cash Flow Offer (as defined in the Indenture), and (y) Borrowers shall not be required to this clause (iii) prepay the Obligations with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets Excess Cash Flow to the extent (A) such Net Proceeds are in fact committed that Parent would have less than $30,000,000 available to be reinvested by such Borrower pursuant to a purchase contract providing for borrowed under this Agreement upon consummation of the acquisition of such replacement assets that is executed by such Borrower and Excess Cash Flow Offer (as defined in the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. IfIndenture), at any time after the occurrence of a Relevant Sale and prior giving PRO FORMA effect to the acquisition purchase of the related replacement assets, the 90 or 270-day period provided in clause Notes (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (as defined in the case of clause (A)Indenture) or the occurrence of the related acquisition (in the case of clause Excess Cash Flow Offer (Bas defined in the Indenture)) or a Default or Event of Default shall occur, then the . Borrowers shall immediately not be required to prepay the outstanding Obligations in with Excess Cash Flow if the amount and in the manner described in the first sentence of this clause (iii)Excess Cash Flow Amount is less than $5,000,000.
(ivvi) If, at Immediately upon the receipt by Parent or any time after the Closing Date, of its Subsidiaries of any Loan Party issues insurance proceeds related to a casualty or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) loss of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (Collateral or the Administrative Agent or the Security Trustee) payment of any Net Insurance Proceeds award or Net Condemnation Proceeds during any calendar year (including 2007)compensation for condemnation or taking by eminent domain, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower Borrowers shall prepay the outstanding Obligations in the manner set forth in Section 2.06(daccordance with clause (d) below in an amount equal to the aggregate amount of the sum 100% of such excess proceeds or such increase payment, net of any reasonable expenses incurred in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement collecting such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datepayment.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Loan and Security Agreement (Evergreen International Aviation Inc)
Mandatory Prepayments. The Borrowers Borrower shall prepay make mandatory prepayments on the Obligation to Administrative Agent in the following amounts (or Cash Collateralize, as applicable) the Obligations as follows:without duplication):
(i) IfOn any date of determination, at any timeif the Commitment Usage exceeds the Commitment then in effect, or if the Effective Amount of all Revolving Loans, Swing Principal Debt exceeds the Swing Line Loans and L/C Obligations Subfacility then outstanding exceeds in effect, then Borrower shall make a mandatory prepayment of the Total Principal Debt under the Revolving Loan Commitment Facility in at least the amount of any such timeexcess, the Borrowers shall immediately together with (A) prepay all accrued and unpaid interest on the Swing Line Loans to the extent Swing Line Loans in a sufficient principal amount are then outstanding, so prepaid and (B) then prepay the Revolving Loans to the extent Revolving Loans in any Consequential Loss arising as a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excessresult thereof.
(ii) The Borrowers On any date of determination, if a Borrowing Base Deficiency exists, Borrower shall repay each Swing Line Loan on make a mandatory prepayment of the earlier Principal Debt under the Revolving Facility in at least the amount necessary to occur of cause the Borrowing Base Deficiency to no longer exist, together with (A) all accrued and unpaid interest on the Swing Line Settlement Date occurring after such Swing Line Loan is made principal amount so prepaid and (B) the Maturity Dateany Consequential Loss arising as a result thereof.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) 100% of the Net Proceeds from any such sale (subject in all respects to Section 9.10) of assets by Borrower, other than any sale of assets which are obsolete or dispositionare no longer in use and which are not significant to the continuation of Borrower's business; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise CREDIT AGREEMENT PMC COMMERCIAL TRUST
(iv) 100% of all the Net Proceeds received by the Companies in connection with any Structured Financing or Asset Securitization; and
(cash and non-cashv) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time 100% of the Net Proceeds from any Debt incurred as permitted by Section 9.2(a)(iv). Mandatory prepayments made pursuant to clauses (iii) - (v) above (together with any related Consequential Loss) are payable on the same Business Day on which the proceeds of such Relevant Sale sale, securitization or issuance are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent by Borrower, and must be made together with (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for all accrued and unpaid interest on the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale principal amount so prepaid and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Saleany Consequential Loss arising as a result thereof. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and If the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each mandatory prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was hereunder is greater than the amount set forth in then-outstanding Obligation, any such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall excess may be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed retained by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessBorrower.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
(i) If, at Not later than the fifth Business Day following the receipt of Net Cash Proceeds in respect of any timeAsset Sale (other than in respect of a sale involving any Real Property Asset), the Effective Amount Borrower shall apply 100% of all Revolving Loans, Swing Line the Net Cash Proceeds received with respect thereto to prepay outstanding Loans and L/C Obligations then outstanding exceeds (ii) concurrently with, and as a condition to the Total Revolving closing of, any Asset Sale or Required Dedication with respect to an interest in any Real Property Asset by any Loan Commitment at such timeParty, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount Required Land Sales Proceeds attributable to such Asset Sale or Required Dedication, in each case, less any Asset Sale Holdback Amounts.
(i) In the event and on each occasion that an Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Equity Issuance, apply 50% of the L/C ObligationsNet Cash Proceeds therefrom to prepay outstanding Loans and (ii) in the event and on each occasion that an OpCo Intermediate Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such OpCo Intermediate Equity Issuance, apply 100% of the Net Cash Proceeds therefrom (less any amounts that are required to be used to repay any loans pursuant to the OpCo Credit Agreement) that are actually received by the Borrower (it being understood that such proceeds are required to be delivered to the Borrower for such purpose) to prepay outstanding Loans.
(c) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Loans in an aggregate principal amount equal to such excess100% of Excess Cash Flow for the fiscal year then ended.
(iid) The Borrowers shall repay each Swing Line Loan on In the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), event that any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the shall receive Net Cash Proceeds from any such sale the issuance or disposition; provided that so long as the cash portion incurrence of the consideration Indebtedness for any such disposed assets is not less than 90% money borrowed of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) subsidiary of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or other than any cash proceeds from the Administrative Agent or the Security Trustee) issuance of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007Indebtedness for money borrowed permitted pursuant to Section 6.01), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay shall, substantially simultaneously with (and in any event not later than the outstanding Obligations in fifth Business Day next following) the manner set forth in Section 2.06(d) in receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to the aggregate amount of the sum 100% of such excess or such increase in such excess. Notwithstanding Net Cash Proceeds to prepay outstanding Loans.
(e) In the foregoingevent that any Loan Party shall receive Net Cash Proceeds from any Extraordinary Receipt, the Borrower shall shall, substantially simultaneously with (and in any event not be required later than the fifth Business Day next following) the receipt of such Extraordinary Receipt, apply 100% of such Extraordinary Receipt to make prepay outstanding Loans.
(f) In the event that OpCo or OpCo Intermediate makes a prepayment dividend, distribution or other Restricted Payment to OpCo Holdings (other than in respect of Restricted Payments made pursuant to this clause (vSection 6.06(a)(i) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if through 6.06(a)(x) of the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if notOpCo Credit Agreement), the Borrower has deposited shall, substantially simultaneously with (and in any event not later than the Administrative Agent good funds equal to fifth Business Day next following) the difference between the cost receipt of such repairpayment by OpCo Holdings, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion cause 100% of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail cash proceeds therefrom to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately be applied to prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateLoans.
(vig) The Borrowers Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c)2.12, (Ai) a certificate signed by the chief financial officer a Financial Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (Bii) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In All prepayments of Borrowings under this Section 2.12 shall be subject to Section 2.15, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the event that the Borrowers shall subsequently determine that the actual principal amount required to be prepaid was greater than to but excluding the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment date of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excesspayment.
Appears in 1 contract
Sources: Credit Agreement (St Louis Riverboat Entertainment Inc)
Mandatory Prepayments. The Borrowers Without reducing the Total Commitments or any of the Commitments except from and after the giving of notice by the Administrative Agent in accordance with Section 2.05(b)(i), the Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations Loans as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers Borrower shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding outstanding, in an aggregate principal amount equal to such excess, and (C) otherwiseif the Total Commitment has been reduced to zero, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar fiscal year (including 2007fiscal year 2005), any Loan Significant Party sells or otherwise disposes of any assets (other than (A) sales permitted under Sections 5.02(c)5.02(c)(i), (ii), (iii), (iv) or (v) and (B) sales or leases between Borrower Entities or substantially equivalent exchanges of assets at Fair Market Value and upon terms at least as favorable as an arms-length transaction with unaffiliated Persons (collectively “Permitted Sales”)) and the Borrowers Net Cash Proceeds and Temporary Cash Investments of such assets sales or other dispositions (other than Permitted Sales), when added to the Net Cash Proceeds and Temporary Cash Investments of all such sales by all Significant Parties during such fiscal year (other than Permitted Sales), in the aggregate, exceed 10% of Consolidated Tangible Net Worth as of the end of the last day of the immediately preceding fiscal year, the Borrower shall, immediately after the completion of each sale or other dispositiondisposition which results in such an excess or an increase in such an excess (but subject to the reinvestment exceptions below), prepay (or cause to be prepaid) the outstanding Revolving Loans and the other Obligations in the manner set forth in Section 2.06(d2.07(e), in each case, in an aggregate principal amount equal to eighty-five percent (85%) 100% of the Net Proceeds from any such sale excess or dispositionsuch increase in such excess; provided that so long as the cash Net Cash Proceeds and the Temporary Cash Investments portion of the consideration (in excess of $5,000,000 in the aggregate as of the end of the last day of the immediately preceding fiscal year) for any such disposed assets (other than from Permitted Sales) is not less than 9050% of all consideration for such disposed assets assets, only the cash portion of such Net Cash Proceeds and Temporary Cash Investments at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; cash or its equivalent, otherwise 100% of all Net Proceeds net proceeds (cash and non-cash) shall be counted; and provided further that any prepayment required shall be exclusive of any cash and non-cash proceeds received in connection with the sale or disposition of, or collection on, the Banacol Notes, and the Equity Securities of Landec or Seneca Foods by any of the CBII Entities. Notwithstanding the foregoing, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iiiii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise Borrower advises the Administrative Agent in writing at the time the Net Cash Proceeds and Temporary Cash Investments from such Relevant Sale are received that the applicable Borrower it intends to reinvest all or any portion of such Net Cash Proceeds and Temporary Cash Investments in replacement assets property, plant, equipment, other assets, and/or investments (including joint ventures) in Food-Related Businesses to the extent (A) such Net Cash Proceeds and Temporary Cash Investments are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for in the acquisition of such replacement assets that is executed by such Borrower and the related seller or investments within 90 180 days from the date of such Relevant Sale on which the Borrower receives the Net Cash Proceeds and (B) the acquisition of such replacement assets occurs within 270 days Temporary Cash Investments from the date of such Relevant Sale, provided, however, that the Borrower’s requirement to advise the Administrative Agent as provided above shall not apply to any Relevant Sales that in the aggregate are equal to or less than 10% of Consolidated Tangible Net Worth as of the end of the last day of the immediately preceding fiscal year. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assetssuch assets or investments, the 90 or 270180-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default investment or an Event of Default shall occuroccur and is continuing, then the Borrowers Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (iiiii).
(iviii) If, at during any time after the Closing Datefiscal year (including fiscal year 2005), any Loan Significant Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures receives insurance proceeds from property-related losses or other similar instruments but excluding Permitted Indebtednessdispositions and the Net Cash Proceeds and Temporary Cash Investments of such losses or other similar dispositions, when added to the Net Cash Proceeds and Temporary Cash Investments of all such losses or other similar dispositions by all Significant Parties during such fiscal year, in the aggregate, exceed $20,000,000 for such fiscal year, the Borrowers Borrower shall, immediately after receipt of the Net Cash Proceeds and Temporary Cash Investments from such issuance losses or incurrenceother similar dispositions which results in such an excess or an increase in such an excess (but subject to the reinvestment section below), prepay (or cause to be prepaid) the outstanding Revolving Loans and the other Obligations in the manner set forth in Section 2.06(d2.07(e), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum % of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (viii) with respect to any particular Net Insurance Proceeds losses or Net Condemnation Proceeds other similar dispositions (a “Relevant Loss”) if the Borrower advises the Administrative Agent in writing within four (4) Business Days promptly after the related Receipt Date time the excess Net Cash Proceeds and Temporary Cash Investments from such Relevant Loss are received that it or another Loan Party the Borrower intends to repairreinvest all or any portion of such excess Net Cash Proceeds and Temporary Cash Investments in property, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived plant, equipment, other replacement assets, and/or investments (including joint ventures) in Food-Related Businesses to the extent (A) such excess Net Insurance Cash Proceeds and Net Condemnation Proceeds Temporary Cash Investments are in fact committed to be utilized to repair, restore or replace such assets reinvested by the Borrower pursuant to one or more contracts a purchase contract providing for the acquisition of such repair, restoration or replacement assets that is executed by a Loan Party the Borrower and the relevant counterparty(ies) related seller within 90 days after one year from the related Receipt Date, date of such Relevant Loss and (B) the acquisition of such repair, restoration replacement assets or replacement is completed investments occurs within 270 days after two years from the related Receipt Date and (C) date on which the Borrower receives the Net Insurance Cash Proceeds or Net Condemnation Proceeds are sufficient and Temporary Cash Investments from the Relevant Loss; provided, however, that the Borrower’s requirement to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with advise the Administrative Agent good funds equal as provided above shall not apply to any Relevant Loss until the difference between the cost of Relevant Losses during such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faithfiscal year exceed $20,000,000. If, at any time after the occurrence of a Receipt Date Relevant Loss and prior to the completion acquisition of the corresponding repair, restoration related replacement assets or replacementinvestments, the 90 one-year or 270two-day year period provided in clause (A) or (B) ), respectively, of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or ), the completion occurrence of the related repair, restoration acquisition or replacement investment (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occuroccur and only so long as continuing, then then, upon request of the Administrative Agent or the Required Lenders, the Borrower shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of this clause (viii). If At any time after the occurrence of a Relevant Loss and prior to the acquisition of the related replacement assets or investments, upon request of the Administrative Agent or the Required Lenders, the Borrower has provided shall deposit the written notice contemplated Net Cash Proceeds and Temporary Cash Investments from such losses or other similar dispositions which result in an excess over the $20,000,000 per fiscal year amount described above or an increase in such an excess into an interest-bearing account with the Administrative Agent (which interest-bearing account shall be perfected by the prior sentence, then Borrower entering into a control agreement and other documentation reasonably requested by the Administrative Agent) until such Net Insurance Cash Proceeds and Temporary Cash Investments are reinvested or Net Condemnation Proceeds are needed to pay paid toward the Loans as directed by the Borrower.
(iv) If, at any time after the Closing Date, any Significant Party issues or incurs any Indebtedness for the related repairborrowed money, restoration including Indebtedness evidenced by notes, bonds, debentures or replacement such proceeds other similar instruments (provided that Permitted Indebtedness shall not be counted and non-cash assets received upon issuance of debt in connection with asset acquisitions shall be held by excluded), the Borrower shall, immediately after such issuance or incurrence, prepay (or cause to be prepaid) the outstanding Revolving Loans and the other Obligations in the manner set forth in Section 2.07(e), in each case, in an aggregate principal amount equal to 100% of the Net Cash Proceeds and Temporary Cash Investments of such Indebtedness.
(v) At any time after the occurrence and during the continuance of a Material Adverse Change, the Administrative Agent as collateral. No right to apply proceeds to repairmay, restoration or replacement shall exist if any such repairupon instructions from the Required Lenders shall, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver by written notice to the Administrative AgentBorrower demand, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type Borrower shall immediately thereafter prepay the outstanding Revolving Loans and principal amount of each Loan (or portion thereof) to be prepaid. In the event that other Obligations in the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount manner set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessSection 2.07(e).
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) Clause (i) of Section 2.05(c) of the Obligations Financing Agreement is hereby amended and restated in its entirety to read as follows:
(i) If, If at any timetime the aggregate principal amount of the sum of the Revolving A Loans, the Effective Amount Revolving B Loans and the Revolving C Loans plus the outstanding amount of all Revolving Loans, Swing Line Loans and L/C Letter of Credit Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timedifference between the Borrowing Base and the Availability Reserve, the Borrowers shall Borrower will immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the applicable Revolving Loans to the full extent of any such excess in accordance with Section 2.05(d). On each day that any Revolving Loans in a sufficient amount A Loan, Revolving B Loan, Revolving C Loan or Letter of Credit Obligations are then outstanding outstanding, the Borrower shall hereby be deemed to represent and (C) otherwise, Cash Collateralize the Obligations in an amount equal warrant to the then Effective Amount Agents and the Lenders that the difference between the Borrowing Base and the Availability Reserve calculated as of such day equals or exceeds the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for Revolving A Loans, Revolving B Loans, Revolving C Loans and Letter of Credit Obligations outstanding on such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Saleday. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in Borrower has complied with the first sentence of this Section 2.05(c)(i), the aggregate Letter of Credit Obligations is greater than the lesser of (A) the then current Borrowing Base minus the Availability Reserve and (B) the Total Revolving A Credit Commitment, provided, that, for purposes of calculating the immediately preceding clause (iiiB).
(iv) If, at any time after if the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted IndebtednessAvailability Reserve exceeds the sum of the Total Revolving B Credit Commitment and the Total Revolving C Credit Commitment, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations amount in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) excess of the Net Proceeds of such Indebtedness.
Availability Reserve shall be deducted from clause (v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007B), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay provide cash collateral to the outstanding Obligations in the manner set forth in Section 2.06(d) Funding Agent in an amount equal to 110% of such excess, which cash collateral shall be deposited in an account under the sole and exclusive control of the Funding Agent for the benefit of the Agents, the Lenders and/or the L/C Issuer and, provided that no Event of Default shall have occurred and be continuing, such cash collateral shall be returned to the Borrower, at such time as the aggregate Letter of Credit Obligations plus the aggregate principal amount of all outstanding Revolving Loans no longer exceeds the sum lesser of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds the then current Borrowing Base minus the Availability Reserve and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repairthe Total Revolving A Credit Commitment, restoration or replacement is completed within 270 days after provided, that, for purposes of calculating the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the immediately preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or if the Borrower Availability Reserve exceeds the difference between (x) the sum of the Total Revolving B Credit Commitment and the Total Revolving C Credit Commitment, the amount in excess of the Availability Reserve shall fail to provide and deposit the funds and proceeds required under be deducted from clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (vB). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.”
(vib) The Borrowers shall deliver to the Administrative Agent, at the time Clause (viii) of each prepayment required under this Section 2.06(c), (A2.05(c) a certificate signed by the chief financial officer of the Borrowers setting forth Financing Agreement is hereby amended and restated in reasonable detail the calculation of the amount of such prepayment and (B) its entirety to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.read as follows:
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations Loan is subject to mandatory prepayment as follows:
, each without a Yield Maintenance Premium (i) If, at any time, the Effective Amount provide that there shall not exist an Event of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds Default at the time of sale will be counted for purposes of any such mandatory prepayment required under this sentence and the remaining consideration shall be counted when received that mandatory prepayment is made as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) in accordance with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends requirements of this Agreement):
(1) The Loan is subject to reinvest all or any portion mandatory prepayment in certain instances of such Net Proceeds Casualty and Condemnation (each a "CASUALTY/CONDEMNATION PREPAYMENT"), in replacement assets the manner and to the extent (A) such Net Proceeds are set forth in fact committed Paragraph 12.C(4). Each Casualty/Condemnation Prepayment shall be made on a scheduled payment date and include all accrued and unpaid interest up to be reinvested by such Borrower pursuant to but not including that scheduled payment date or, if not paid on a purchase contract providing for scheduled payment date, include interest that would have accrued on that prepayment through the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)next regularly scheduled payment date.
(iv2) If, at any time after Borrower's shall prepay that portion of the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount that is equal to one hundred percent (100%) of the Net Proceeds of such IndebtednessExcess Loan Amount, as defined, described and determined below.
(va) Not later than four Under the procedure established in Paragraph 13.E of the Loan Agreement (4) Business Days following and the date corresponding provisions of receipt Schedule 13.E), Lender has agreed to close the Loan without having received or approved of Appraisals for the Properties. The Appraisals to be delivered under that Paragraph, as approved by Lender as to both form and substance, must demonstrate a loan-to-value ratio that does not exceed 70%, taking into consideration all Properties (the "LOAN-TO-VALUE REQUIREMENT"). Borrower shall provide Lender with Appraisal Reports for all of the Individual Properties, in final form (each a “Receipt Date”"FINAL APPRAISAL") by a Loan Party and in sufficient time to permit Lender's full review and comment, and if necessary each Appraiser's response and/or revision, on or before July 2, 1998 (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007"FINAL APPRAISAL DATE"), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the . Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal pay to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoingLender, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) five Business Days after written demand by Lender the related Receipt Date that it or another Loan Party intends to repairexcess, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repairif any, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the Loan amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of that demand over 70% of the aggregate final fair market value (the "APPRAISED VALUE") of all Properties taken together and established by the Final Appraisals approved by Lender for each prepayment required under this Section 2.06(cIndividual Property (the "EXCESS LOAN AMOUNT"), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaidtogether with Hedge Breakage Costs. In determining the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Excess Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.Amount,
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) Upon the date of any reduction of Commitments pursuant to Section 2.07, the Borrower shall prepay (or Cash Collateralizean amount of Loans and provide cash cover for outstanding Letters of Credit in accordance with Section 6.03 in such amounts as may be necessary so that immediately after giving effect to such payment and/or collateralization, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, Outstanding Amount LESS the Borrowers shall immediately amount of collateral so deposited with respect to Aggregate LC Exposure is not greater than (Aii) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient aggregate amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excessCommitments as so reduced.
(b) Without limitation of clause (a) above, if at any time the Agent shall determine that a Borrowing Base Excession exists, the Agent shall forthwith notify the Banks and the Borrower. On or before the date falling 6 months after the inception of a Borrowing Base Excession, the Borrower shall remedy such Borrowing Base Excession by (i) prepaying such principal amount of the Loans as may be necessary to reduce the outstanding principal amount thereof to the Borrowing Base at the date of prepayment, (ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
providing cash cover for Aggregate LC Exposure in accordance with Section 6.03, (iii) Ifincreasing the Borrowing Base through the addition of Borrowing Base Properties in accordance with Sections 2.15, at any time after 5.02 and 5.21; PROVIDED that, the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes value of any assets (other than sales permitted under Sections 5.02(c))such Borrowing Base Properties and whether such value is sufficient to remedy such Borrowing Base Excession shall be determined by the Required Banks, in their good faith discretion and in a manner that is consistent with the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner standards set forth in Section 2.06(d2.15(c), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (Biv) a combination of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause i), (A)ii) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause and/or (iii).
(ivc) If, at any time after the Closing Date, any Loan Party issues Each repayment or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in prepayment of Loans pursuant to this Section 2.06(d), in each case, in an aggregate principal amount equal 2.09 shall be made together with accrued interest to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt payment, and shall be applied ratably to payment of the Loans of the several Banks in proportion to their Commitments (each a “Receipt Date”) by a Loan Party (or or, if the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)Commitments have been terminated, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount outstanding principal amounts of their Loans). Within the sum foregoing limits of such excess this Section 2.09, each required payment or such increase in such excess. Notwithstanding the foregoing, the Borrower prepayment shall not be required to make a prepayment pursuant to this clause (v) made with respect to any particular Net Insurance Proceeds such outstanding Group or Net Condemnation Proceeds if Groups of Loans as the Borrower advises may designate to the Administrative Agent in writing within four (4) not less than three Euro-Dollar Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of date required for such payment or prepayment or, failing such designation by the corresponding repairBorrower, restoration or replacement, as the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or Agent may specify by notice to the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessBanks.
Appears in 1 contract
Sources: Senior Reducing Revolving Credit Facility (Bellwether Exploration Co)
Mandatory Prepayments. The Borrowers (a) On each date on which the Revolving Commitment Amount is reduced pursuant to Section 6.2.2, the Company shall prepay Revolving Loans in the amount, if any, by which the Revolving Outstandings exceed the Revolving Commitments after giving effect to such reduction (or Cash Collateralizeand, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of if all Revolving Loans, Loans and Swing Line Loans have been paid and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeOutstandings still exceed the Revolving Commitments, the Borrowers Company shall immediately provide cash collateral for the outstanding Letters of Credit in an amount equal to such excess).
(Ab) prepay Within 95 days after the Swing Line end of each Fiscal Year, the Company shall make a prepayment of the Term Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount Specified Percentage (as defined below) of Excess Cash Flow for such Fiscal Year. The "Specified Percentage" shall be (i) 75% until the date on which the Company has delivered financial statements demonstrating that the Total Leverage Ratio has been less than 3.0 to 1.0 as of the L/C Obligationslast day of two consecutive Fiscal Quarters and (ii) 50% thereafter.
(c) Concurrently with the receipt by the Company or any Subsidiary of any Applicable Asset Sale Proceeds, the Company shall make a prepayment of the Term Loans in an aggregate principal amount equal to 100% of such excess.
Applicable Asset Sale Proceeds (ii) The Borrowers shall repay each Swing Line Loan on the earlier rounded down, if necessary, to occur an integral multiple of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007$100,000), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any no such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when required unless the aggregate amount of Applicable Asset Sale Proceeds so received as cash; otherwise 100% of together with all Net Applicable Asset Sale Proceeds (cash previously received and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required previously applied to make a prepayment prepay Term Loans pursuant to this clause (iiic) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)exceeds $250,000.
(ivd) If, at Concurrently with the receipt by the Company or any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) Subsidiary of any Net Insurance Cash Proceeds or Net Condemnation Proceeds during from the issuance of any calendar year Debt (including 2007other than Debt permitted by Section 10.7), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by Company shall make a Loan Party (or prepayment of the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Term Loans in an amount equal to 100% of such Net Cash Proceeds.
(e) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from the issuance of any equity securities of the Company or any Subsidiary (other than issuances to employees in an aggregate amount not to exceed $1,500,000; issuances to GTCR Capital, GTCR Fund VII, the TCW/Crescent Lenders and each of their respective Affiliates; and issuances in connection with acquisitions permitted hereunder), the Company shall make a prepayment of the sum Term Loans in an amount equal to 75% of such excess or such increase in such excess. Notwithstanding Net Cash Proceeds.
(f) Not later than five days prior to the foregoing, date on which the Borrower shall not Company would be required to make a prepayment pursuant to this clause an Asset Sale Offer (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if as defined in the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if notSubordinated Indenture), the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of Company shall make a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Term Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of Excess Proceeds (as defined in the Subordinated Indenture) that would be required to be paid pursuant to such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessAsset Sale Offer.
Appears in 1 contract
Mandatory Prepayments. The Borrowers (a) In the event of any termination of all the Revolving Credit Commitments, the Borrower shall repay or prepay (or Cash Collateralizeall its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans on the date of such termination. In the event of any partial reduction of the Revolving Credit Commitments, as applicable) the Obligations as follows:
then (i) If, at any timeor prior to the effective date of such reduction or termination, the Effective Amount Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of all the Aggregate Revolving Loans, Swing Line Loans Credit Exposure after giving effect thereto and L/C Obligations then outstanding exceeds (ii) if the Aggregate Revolving Credit Exposure would exceed the Total Revolving Loan Credit Commitment at after giving effect to such timereduction or termination, then the Borrowers shall immediately Borrower shall, on the date of such reduction or termination, repay or prepay Revolving Credit Borrowings or Swingline Loans (Aor a combination thereof) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal sufficient to eliminate such excess.
(b) Not later than the then Effective Amount fifth Business Day following the completion of any Asset Sale, the Borrower shall apply 100% of the L/C ObligationsNet Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Sections 2.13(f) and (h); PROVIDED, however, that the Borrower shall not be required to comply with this Section 2.13(b) until such time as the Net Cash Proceeds from all Asset Sales received and not otherwise applied to prepay Term Loans in accordance with this Section 2.13(b) exceeds $2,500,000 (and at such time the Borrower shall so apply all such Net Cash Proceeds and, after each such application, shall not be required to comply with the provisions of this paragraph (b) until such time as such received but unapplied Net Cash Proceeds again exceeds $2,500,000).
(c) Not later than the earlier of (i) 100 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2000, and (ii) ten days after the date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with Sections 2.13(f) and (h) in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) 25% of Excess Cash Flow for the Swing Line Settlement Date occurring after fiscal year then ended if the Total Debt Ratio at the end of such Swing Line Loan is made and fiscal year was equal to or less than 2:00 to 1:00, (B) 50% of Excess Cash Flow for the Maturity Date.
fiscal year then ended if the Total Debt Ratio at the end of such fiscal year was greater than 2:00 to 1:00 but equal to or less than 3:00 to 1:00 and (iiiC) If75% of Excess Cash Flow for the fiscal year then ended if the Total Debt Ratio at the end of such fiscal year was greater than 3:00 to 1:00; PROVIDED, at any time after HOWEVER, that the Closing Date during any calendar year amount required to be prepaid pursuant to clause (including 2007A), any Loan Party sells (B) or otherwise disposes (C) will be reduced by the amount of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) optional prepayments of the Net Proceeds from any principal of Loans made during the fiscal year then ended, but only to the extent that such sale prepayments cannot by their terms be reborrowed or disposition; provided that so long as the cash portion redrawn and do not occur in connection with a refinancing of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Loans.
(d) In the event that any Loan Party or any subsidiary of any Loan Party shall receive Net Cash Proceeds from the issuance or other disposition of Indebtedness for borrowed money of any Loan Party or any subsidiary of any Loan Party (other than Indebtedness for borrowed money permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in replacement assets to any event not later than the extent (Athird Business Day next following) the receipt of such Net Cash Proceeds are in fact committed to be reinvested by such Borrower pursuant Loan Party or subsidiary, apply an amount equal to a purchase contract providing for the acquisition 100% of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale Net Cash Proceeds to prepay outstanding Term Loans in accordance with Sections 2.13(f) and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iiih).
(ive) IfIn the event that there shall occur any Casualty or Condemnation and, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtednesspursuant to Section 5.12, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)Proceeds, when added as the case may be, are required to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall be used to prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occurTerm Loans, then the Borrower shall immediately prepay the outstanding Obligations in the apply an amount and in the manner described in the first sentence equal to 100% of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed (in each case, net of taxes and other obligations required to pay for the related repair, restoration or replacement be paid out of such proceeds shall be held by in accordance with the Administrative Agent terms of the agreements governing such obligations and this Agreement and the other Loan Documents), as collateral. No right the case may be, to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Dateprepay outstanding Term Loans in accordance with Sections 2.13(f) and (h).
(vif) Mandatory prepayments of outstanding obligations under this Agreement pursuant to paragraphs (b) through (e) above shall, be allocated pro rata between the then-outstanding Tranche A Term Loans and Tranche B Term Loans, and at the option of the Borrower, (i) applied pro rata against the remaining scheduled installments of principal due in respect of Tranche A Term Loans and Tranche B Term Loans under Sections 2.11(a)(i) and (ii), respectively, or (ii) FIRST, applied against the scheduled installments of principal, if any, of Tranche A Term Loans and Tranche B Term Loans due on any Term Loan Repayment Date occurring within six months of the date of such prepayment and SECOND, applied pro rata against the remaining scheduled installments of principal due in respect of Tranche A Term Loans and Tranche B Term Loans under Sections 2.11(a)(i) and (ii), respectively.
(g) The Borrowers Borrower shall deliver to the Administrative Agent, (i) at the time of each prepayment required under this Section 2.06(c)paragraphs (b) through (e) above, (A) a certificate signed by the chief financial officer a Financial Officer of the Borrowers Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (Bii) to the extent reasonably practicable, at least three days Business Days prior written to the time of each prepayment required under this Section 2.13, a notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.
(h) Amounts to be applied pursuant to this Section 2.13 to the event prepayment of Term Loans and Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Loans. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Loans immediately and/or shall be deposited in the Prepayment Account (as defined below) for deferred application to Eurodollar Loans or other Obligations as described below. The Administrative Agent shall apply any cash deposited in the Prepayment Account to prepay Eurodollar Loans on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date, subject to Section 2.16) until all outstanding Term Loans or Revolving Loans, as the case may be, have been prepaid or until all the allocable cash on deposit with respect to such Loans has been exhausted. For purposes of this Agreement, the term "PREPAYMENT ACCOUNT" shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (h). The Administrative Agent will, at the request of the Borrower, invest amounts on deposit in the Prepayment Account in Permitted Investments that mature prior to the last day of the applicable Interest Periods of the Eurodollar Borrowings to be prepaid; PROVIDED, HOWEVER, that (i) the Administrative Agent shall not be required to make any investment that, in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any law, statute, rule or regulation and (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account in any investments other than overnight Permitted Investments if a Default or Event of Default shall have occurred and be continuing. The Borrower shall indemnify the Administrative Agent for any losses relating to such investments so that the Borrowers shall subsequently determine that amount available to prepay Eurodollar Borrowings on the actual amount required to be prepaid was greater last day of the applicable Interest Period is not less than the amount set forth in that would have been available had such certificateinvestments not been made pursuant to this paragraph (h). Other than any interest earned on such investments, the Borrowers Prepayment Account shall promptly make an additional prepayment not bear interest. Interest or profits, if any, on such investments shall be deposited in the Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loans (and/or, if applicablehas been accelerated pursuant to Article VIII, the Revolving Loan Commitments shall be permanently reduced) Administrative Agent may, in an amount equal to its sole discretion, apply in accordance with the amount of such excess, terms hereof and the Borrowers shall concurrently therewith deliver other Loan Documents all amounts on deposit in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby grants to the Administrative Agent a certificate signed by Agent, for its benefit and the chief financial officer benefit of the Borrowers demonstrating Issuing Bank, the derivation of Swingline Lender and the additional amount resulting Lenders, a security interest in such excessthe Prepayment Account to secure the Obligations.
Appears in 1 contract
Sources: Credit Agreement (Johnstown America Industries Inc)
Mandatory Prepayments. The Borrowers shall prepay Offers to Prepay (or Cash Collateralize1) Unless a Mandatory Prepayment Suspension is in effect, as applicable) the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any Disposition of any Assets (other than Permitted Dispositions, unless such sale or disposition; provided that so long as the cash portion Permitted Disposition is made under clause (iv) of the consideration definition thereof) in excess of U.S. $100,000,000 (or the equivalent amount in any other currency) in the aggregate in each Financial Year (whether individually or in the aggregate) by any Loan Party shall be applied within 10 0.25% 0.25% June 30, 2023 March 31, 2022 - 52 - LEGAL_1:80104424.8 Business Days of receipt thereof, to the prepayment of Accommodations Outstanding under the Term Loan Facility in accordance with Section 2.09 hereof; provided, that if, for any Financial Year, the threshold amount specified above exceeds the aggregate amount of applicable Dispositions made by Open Text and its Subsidiaries, as determined on a consolidated basis during such disposed assets is not less than 90Financial Year, the threshold amount set forth above for the succeeding Financial Year shall be increased by 50% of all consideration for such disposed assets only excess amount; provided, further that if notice of the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends Borrower’s intention to reinvest all or any portion of such Net Proceeds in replacement assets the Business of the Loan Parties within 365 days of receipt thereof is delivered to the extent Administrative Agent within 10 Business Days of receipt thereof, such Net Proceeds shall not be applied to prepayment of the Accommodations Outstanding as set forth in this Section 2.05(1); provided further that if, after delivery of such notice of intention to reinvest such Net Proceeds any such Net Proceeds are (Ai) no longer intended to be so reinvested or (ii) such Net Proceeds are not so reinvested in fact committed the Business of the Loan Parties within 365 days of receipt thereof, then an amount equal to any such Net Proceeds shall be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior immediately applied to the acquisition prepayment of the related replacement assets, Accommodations Outstanding under the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Term Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner Facility as set forth in this Section 2.06(d2.05(1); provided however that if, in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year365 day period, in the aggregate, exceed $25,000,000 for Borrower has entered into a binding commitment to reinvest such calendar yearNet Proceeds, the Borrower shall prepay have an additional 180 days from the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum end of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required 365 day period to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which reinvest such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateProceeds.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Open Text Corp)
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralizea) Following the end of each Fiscal Year, as applicable) commencing with the Obligations as follows:
(i) IfFiscal Year ending January 2, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time2016, the Borrowers shall immediately (A) prepay the Swing Line Term Loans in an amount equal to 50% of Excess Cash Flow for such Fiscal Year. Each prepayment pursuant to this Section 5.3.2(a) shall be made within five (5) days after the date on which financial statements and the Compliance Certificate are required to be delivered (or if earlier, the date on which such financial statements and Compliance Certificate are delivered) pursuant to Section 10.1.2(a) and Section 10.1.2(d), respectively, with respect to the extent Swing Line Fiscal Year for which Excess Cash is being calculated (and, in any event, within 95 days after the end of such Fiscal Year).
(b) Concurrently with any Permitted Asset Disposition of Equipment or Real Estate, Borrowers shall prepay Term Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount Net Proceeds of the L/C Obligationssuch disposition; provided, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur that, so long as no Default or Event of (A) the Swing Line Settlement Date occurring after such Swing Line Loan Default has occurred and is made and (B) the Maturity Date.
(iii) Ifcontinuing, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any single such sale or disposition; provided that so long as the cash portion Asset Disposition in an amount not in excess of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers $2,000,000 shall not be required to make be so applied to the extent Borrowers deliver to Agent a prepayment pursuant certificate stating that Obligors intend to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the use such Net Proceeds from such Relevant Sale to acquire assets that are received that used or useful in the applicable Borrower intends to reinvest all or any portion business of Obligors within 180 days of the receipt of such Net Proceeds in replacement assets to the extent (A) Proceeds, it being expressly agreed that all such Net Proceeds are in fact committed not so reinvested shall be immediately applied to be reinvested by such Borrower pursuant to a purchase contract providing for prepay the acquisition Loans upon the expiration of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-180 day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)period.
(ivc) If, at any time after Concurrently with the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds proceeds of insurance or Net Condemnation Proceeds during condemnation awards paid in respect of any calendar year (including 2007)Equipment or Real Estate, when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower Borrowers shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Term Loans in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoingproceeds, the Borrower shall not be required subject to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity DateSection 8.6.2.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any timeIn the event of the termination of all the Revolving Commitments, the Effective Amount Borrowers, jointly and severally, shall, on the date of such termination, repay or prepay all outstanding Revolving Loans, Swing Line Loans and L/C Obligations Swingline Loans and either (A) replace all outstanding Letters of Credit or (B) Cash Collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i).
(ii) In the event of any partial reduction of the Revolving Commitments by the Borrowers, then outstanding exceeds (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Administrative Borrower and the Revolving Lenders of the Total Revolving Loan Commitment Exposure after giving effect thereto and (y) if the Total Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then the Borrowers, jointly and severally, shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Loans and third, replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.17(i) in an aggregate amount sufficient to eliminate such excess.
(iii) If at any time the Total Revolving Exposure exceeds the Revolving Commitments at such time, the Borrowers shall Borrowers, jointly and severally, shall, without notice or demand, immediately (A) first, repay or prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstandingSwingline Loans, (B) then second, repay or prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then Loans, and third, replace outstanding and (C) otherwise, Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the Obligations procedures set forth in Section 2.18(i) in an aggregate amount equal sufficient to eliminate such excess.
(iv) In the then Effective event that the aggregate Dollar Amount of the L/C ObligationsLC Exposure exceeds the LC Commitment then in effect, the Borrowers, jointly and severally, shall, without notice or demand, immediately replace outstanding Letters of Credit or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i) in an aggregate amount sufficient to eliminate such excess.
(v) No later than the earlier of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section 5.01(a), the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to (x) 50% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such excess.
period is greater than or equal to 4.75:1.00, (iiy) The Borrowers shall repay each Swing Line Loan on 25% of Excess Cash Flow for the earlier Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such period is less than 4.75:1.00 but greater than or equal to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made 4.00:1.00 and (Bz) 0% of Excess Cash Flow for the Maturity Date.
Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such period is less than 4.00:1.00; provided that the aggregate principal amount of optional prepayments of Term Loans made pursuant to Section 2.10(a) (iii) Ifbut excluding, at any time after for the Closing Date during any calendar year (including 2007)avoidance of doubt, any Loan Party sells or otherwise disposes Term Loans prepaid pursuant to a Discounted Prepayment Offer) and the aggregate principal amount of any assets optional prepayments of Revolving Loans (other than sales permitted under Sections 5.02(c)), but only to the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations extent accompanied by a permanent reduction in the manner set forth in Section 2.06(dTotal Revolving Commitments), in each casecase made during such Excess Cash Flow Period with Internally Generated Funds shall reduce on a dollar-for-dollar basis the amount of such mandatory prepayment otherwise required pursuant to this Section 2.10(b)(v) in respect of such Excess Cash Flow Period.
(vi) Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale or Casualty Event by any Restricted Party (other than Net Cash Proceeds of less than $5,000,000 in the aggregate in any fiscal year of the Administrative Borrower), the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) apply 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(d); provided that: (x) so long as no Default shall then exist or would arise therefrom, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Administrative Borrower shall have delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be reinvested (or committed to be reinvested) in fixed or capital assets of any Borrower or any Subsidiary Guarantor (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in a vessel (or vessels) that will become a Collateral Vessel (or Collateral Vessels)) within 12 months following the date of such Asset Sale or Casualty Event, as applicable (which Officer’s Certificate shall set forth the estimates of the Net Cash Proceeds to be so expended); provided that, if the property subject to such Asset Sale or Casualty Event constituted Collateral or Equity Interests in a Specified Joint Venture, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the First Priority perfected Lien (subject to Permitted Liens or, in the case of any Vessels, Permitted Collateral Vessel Liens) of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10 and the preceding proviso in the case of the sale of any Equity Interests in any Specified Joint Ventures; and (y) if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if committed to be reinvested pursuant to a legally binding commitment within such 12-month period and not so reinvested within six months thereafter), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(b)(vi); and provided, further, that (x) so long as no Default then exists or would result therefrom and (y) if the Net Cash Proceeds of any Asset Sales and/or Casualty Events exceed $10,000,000 in the aggregate, such Net Cash Proceeds shall be deposited in a Deposit Account (a “Reinvestment Proceeds Account”) of the Administrative Borrower with the Administrative Agent (or another Deposit Bank reasonably satisfactory to the Administrative Agent) pursuant to a cash collateral arrangement in form and substance reasonably satisfactory to the Administrative Agent (and subject to a Deposit Account Control Agreement) whereby such Net Cash Proceeds shall be disbursed to the Administrative Borrower from time to time as needed to pay actual costs incurred by it or the applicable Subsidiary Guarantor in connection with the replacement or restoration of the respective properties or assets (or, with respect to the Net Cash Proceeds from the sale of any Equity Interests in any Specified Joint Venture, in connection with the reinvestment in or purchase of a Collateral Vessel (or Collateral Vessels)) (pursuant to such certification requirements as may be reasonably established by the Administrative Agent) (it being understood and agreed that at any time while an Event of Default has occurred and is continuing, the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Administrative Borrower to, follow said directions) to apply any or all proceeds then on deposit in such Reinvestment Proceeds Account to the repayment of the Secured Obligations).
(vii) Not later than one Business Day following the receipt of any Net Cash Proceeds of any Debt Issuance by any Restricted Party, the Borrowers, jointly and severally, shall (subject to Section 2.10(h)) make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90100% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii)Cash Proceeds.
(ivviii) If, at Upon the incurrence or issuance by any time after the Closing Date, Borrower of any Loan Party issues Refinancing Notes or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted IndebtednessSpecified Refinancing Term Loans, the Borrowers shallBorrowers, immediately after jointly and severally, shall (subject to Section 2.10(h)) prepay an aggregate principal amount of the applicable Class or Classes of Term Loans that are to be refinanced with the proceeds of such issuance Refinancing Notes or incurrence, prepay the outstanding Obligations Specified Refinancing Term Loans in the manner set forth in accordance with Section 2.06(d), in each case, 2.10(d) in an aggregate principal amount equal to one hundred percent (100%) % of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Cash Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Datetherefrom.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
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Mandatory Prepayments. The Borrowers shall prepay (a) Upon the consummation of any Asset Disposition or Cash Collateralize, as applicable) upon the Obligations as follows:
(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), receipt by any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time Liquidating Distribution after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) case within 270 days after the Borrower or any of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of its Subsidiaries receives any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearSale Proceeds, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) Loans in an amount equal to 100% of the amount of such Net Sale Proceeds, in accordance with the provisions of Section 2.13; PROVIDED, HOWEVER, that such Net Sale Proceeds which the Borrower or such Subsidiary shall, within 270 days after receipt thereof, use to reinvest in the business of the Borrower of its Subsidiaries, shall not be CKE SIXTH AMENDED AND RESTATED CREDIT AGREEMENT included in determining the aggregate Net Sale Proceeds for such period; PROVIDED, FURTHER that, if an Event of Default shall have occurred and be continuing on the date such Net Sale Proceeds are received by the Borrower or any of its Subsidiaries or at any time during such 270 day period, then the Borrower shall prepay the outstanding Loans in 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), in accordance with the sum provisions of Section 2.13, 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 excess Event of Default.
(b) On each date on which the Borrower or such increase in such excess. Notwithstanding the foregoingany of its Subsidiaries receives any Net Equity Proceeds, the Borrower shall not be required prepay the outstanding Loans in an amount equal to make a prepayment pursuant to this clause (vi) with respect to any particular 50% of such Net Insurance Proceeds or Net Condemnation Equity Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent both (A) the Leverage Ratio as of the end of the fiscal quarter immediately preceding such Net Insurance Proceeds and Net Condemnation Proceeds date as to which financial statements are in fact committed required to be utilized to repair, restore or replace such assets have been delivered pursuant to one or more contracts providing for such repairSections 6.1(a) and 6.1(b), restoration or replacement that 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 executed by a Loan Party less than 2.0 to 1.0 and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repairno 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), restoration 6.1(b) or replacement is completed within 270 days after the related Receipt Date 6.1(e), as applicable and (Cii) 75% of such Net Equity Proceeds if either (A) the Net Insurance Proceeds 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 Net Condemnation Proceeds are sufficient to defray the entire cost of such repair6.1(b), restoration as applicable, is greater than or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to 2.0 to 1.0 (but only until the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. IfLeverage Ratio is less than 2.0 to 1.0, at any which time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (Ai) 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 preceding sentence shall elapse without execution Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Sections 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 related contract (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 case of clause (A)) or aggregate at any one time outstanding for the completion of the related repairBorrower and its Subsidiaries, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to 100% of such Net Debt Proceeds or 100% of the amount by which the aggregate amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer Indebtedness of the Borrowers demonstrating Borrower and its Subsidiaries with respect to Capitalized Leases CKE SIXTH AMENDED AND RESTATED CREDIT AGREEMENT exceeds $100,000,000 on such date, respectively, in accordance with the derivation provisions of Section 2.13.
(d) On each day on which the additional amount resulting in such excess.Total Revolving Loan Commitment is reduced pursuant to Section
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Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicablea) the Obligations as follows:
If at any time (i) If, at any time, the Effective Amount sum of the aggregate principal amount of all Revolving LoansCredit Loans outstanding, Swing Line Loans and plus the then current L/C Obligations then outstanding exceeds Exposure shall exceed the Total Maximum Revolving Loan Commitment at such timeCredit Amount, the Borrowers shall Borrower will immediately (A) prepay the Swing Line such Revolving Credit Loans to the extent Swing Line necessary to eliminate such excess, and (ii) after giving effect to such prepayment of Revolving Credit Loans, then to the extent that the aggregate principal amount of all Term Loans in a sufficient amount are then outstandingoutstanding exceeds the Borrowing Base, (B) then the Borrower will immediately prepay the Revolving such Term Loans to the extent Revolving necessary to eliminate such excess.
(b) On or before December 31 in each year (commencing on December 31, 2002), the Borrower shall prepay Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount 75% of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on Excess Cash Flow for the earlier to occur of (A) immediately preceding fiscal year. Concurrently with the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion making of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearprepayment, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate in such form as may be reasonably satisfactory to the Administrative Agent, signed by the chief financial officer of the Borrowers Borrower, setting forth in reasonable detail the calculation of Excess Cash Flow for the amount immediately preceding fiscal year.
(c) Within two (2) Business Days of such prepayment and (B) to the extent practicable, at least three days prior written notice receipt of such prepayment. Each notice of prepayment shall specify any Net Cash Proceeds by the prepayment date and the Type and principal amount of each Loan (Borrower or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateany Credit Party, the Borrowers Borrower shall promptly make an additional prepayment of the prepay Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to 100% of the amount Net Cash Proceeds received by such Credit Party; provided, that no prepayment shall be required to the extent such Net Cash Proceeds (x) result from the sale of an asset (other than a Real Property Asset) in the ordinary course of business of the Borrower and its Subsidiaries, (y) are reinvested in the purchase assets to be used in the business of Credit Parties within 180 days of the receipt of such excess, Net Cash Proceeds so long as pending such reinvestment any such Net Cash Proceeds are held in the Cash Collateral Account and the Borrowers shall concurrently therewith deliver aggregate amount so held does not at any time exceed $5,000,000 or (z) result from the sale or other disposition of any Non-Core Asset and are actually used to redeem the Rollover Preferred Stock at par to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessextent permitted under Sections 2.11(m) and 6.7 hereof.
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Sources: Credit, Security, Guaranty and Pledge Agreement (Genesis Health Ventures Inc /Pa)
Mandatory Prepayments. (a) If Indebtedness is incurred by any Group Member (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 (together with accrued and unpaid interest thereon) as set forth in Section 2.14(e). The Borrowers provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by any Group Member.
(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sales or Recovery Events (to the extent such Asset Sales or Recovery Events result in Net Cash Proceeds in excess of $15.0 million in the aggregate in any fiscal year (with only the amount in excess of such annual threshold required to be applied to such prepayment)) in a single transaction or a series of related transactions, then, unless a Reinvestment Notice shall be delivered in respect thereof (other than with respect to any Specified Sale and Leaseback Transaction, in respect of which no Reinvestment Notice shall be permitted) and no later than five Business Days (or, if an Event of Default has occurred and is continuing, two Business Days) after the date of receipt by any Group Member of such Net Cash Proceeds, an amount equal to 100% of the amount of such Net Cash Proceeds shall be applied to the prepayment of the Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(e) (any such amounts not required to prepay the Term Loans as a result of application of this clause, the “Retained Asset Sale Proceeds”, which shall not, however, include any proceeds incurred in connection with Sale and Leaseback Transactions permitted pursuant to Section 6.10); provided, that (i) 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 to the prepayment of the Term Loans (together with accrued interest thereon), (ii) the provisions of this Section 2.14 do not constitute a consent to the consummation of any Disposition not permitted by Section 6.5 and (iii) if at the time that any such prepayment would be required, the Term Loan Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay any other Indebtedness secured on a pari passu basis with the Obligations (other than the Revolving Credit Loans) pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or Recovery Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Term Loan Borrower may apply such Net Cash CollateralizeProceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the 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 Term Loans that would have otherwise been required pursuant to this Section 2.14(b) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or repaid with such net proceeds, the declined amount of such net proceeds shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in |US-DOCS\138541167.4141447058.7|| accordance with the 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). Notwithstanding the foregoing, with respect to any Foreign Asset Sale or Foreign Recovery Event, the Term Loan Borrower may elect to reduce the amount of such prepayment by the amount of any Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds, as the case may be, included in such Net Cash Proceeds; provided, that the Term Loan Borrower shall use its commercially reasonable efforts such that the distribution of any amounts constituting Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds solely pursuant to clause (a) of the respective definition thereof (if such amounts were distributed), or the inclusion of any amounts constituting Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds solely pursuant to clause (a) of the respective definition thereof in Net Cash Proceeds for purposes of calculating any repayment obligation pursuant to this paragraph, as applicable, would not result in adverse tax consequences of more than a de minimis amount to Parent and its Subsidiaries (as reasonably determined by Parent), such that such amounts would not constitute Restricted Asset Sale Proceeds or Restricted Recovery Event Proceeds, as the case may be, as promptly as practicable following the date of such prepayment. For the avoidance of doubt, in no event shall the Term Loan Borrower be required to repatriate cash at Foreign Subsidiaries.
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term Loan 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 B Loans, 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 Business Days after the earlier of (x) the date on which the financial statements of Parent referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is to be made, are required to be delivered to the Lenders and (y) the date such financial statements are actually delivered. Notwithstanding the foregoing, the Term Loan Borrower may elect to reduce the amount of such prepayment by an amount equal to the ECF Percentage of Restricted ECF, if any, for such Excess Cash Flow; provided, that the Term Loan Borrower shall use its commercially reasonable efforts such that the distribution of such applicable percentage of amounts constituting Restricted ECF solely pursuant to clause (a) of the definition thereof (if such amounts were distributed), or the inclusion of such applicable percentage of amounts constituting Restricted ECF solely pursuant to clause (a) of the definition thereof in Excess Cash Flow for purposes of calculating any repayment obligation pursuant to this paragraph, would not result in adverse tax consequences (as reasonably determined by Parent), such that such amounts would not constitute Restricted ECF, as promptly as practicable following the Excess Cash Flow Application Date (and at such time (if applicable), shall prepay the Term B Loans by the amount thereof in accordance with this Section 2.14(c)). For the avoidance of doubt, in no event shall the Term Loan Borrowers be required to repatriate cash at foreign subsidiaries.
(i) The Net Cash Proceeds of any Replacement Term Loans or any Permitted Term Loan Refinancing Indebtedness of Term A Loans (that is incurred to refinance Term A Loans) shall be used on a dollar-for-dollar basis for the repayment of Term A Loans to be repaid from such Net Cash Proceeds on the date such Net Cash Proceeds are received and (ii) the Net Cash Proceeds of any Replacement Term Loans or any Permitted Term Loan Refinancing Indebtedness of Term B Loans (that is incurred to refinance Term B Loans) shall be used on a |US-DOCS\138541167.4141447058.7|| dollar-for-dollar basis for the repayment of Term B 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 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 Eurodollar Loans or SOFR 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 2.14(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, Eurodollar Loans or SOFR Loans; provided, further, that the Borrowers 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 applicable Administrative Agent to secure the Obligations as followsand applied thereafter to prepay the Eurodollar Loans or SOFR Loans on the last day of the next expiring Interest Period for Eurodollar Loans or SOFR Loans; provided, that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurodollar Loan or the SOFR Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurodollar Loan or SOFR Loan, and (B) (x) at any time while a Specified Event of Default has occurred and is continuing, the applicable Administrative Agent may, and (y) at any time while an Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the applicable Administrative Agent shall, apply any or all of such amounts to the payment of Eurodollar Loans or SOFR Loans.
(f) Any mandatory prepayment of (x) the Term Loans to be made pursuant to Section 2.14(b) shall be applied pro rata to the Term Loans under the Term Loan Facilities then outstanding based on the aggregate principal amounts of outstanding Term Loans of each Class under the Term Loan Facilities; provided that to the extent provided in the relevant Incremental Facility Amendment or Extension Amendment, any Class of Incremental Term A Loans, Incremental Term B Loans or Extended Term Loans under the Term Loan A Facility or the Term Loan B Facility may be paid on a pro rata basis or less than pro rata basis with any other Class of Term Loans under the Term Facilities and (y) Term B Loans to be made pursuant to Section 2.14(c) shall be applied pro rata to the Term B Loans then outstanding based on the aggregate principal amounts of outstanding Term B Loans; provided that to the extent provided in the relevant Incremental Facility Amendment or Extension Amendment, any Incremental Term B Loans or Extended Term Loans under the Term Loan B Facility may be paid on a pro rata basis or less than pro rata basis with the Term Loan B Facility.
(g) Notwithstanding anything in this Section 2.14 to the contrary:
(i) Ifany Term Loan A Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan A Lender) may elect, by notice to the Term Loan A Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required |US-DOCS\138541167.4141447058.7|| prepayment date, to decline all of any timemandatory prepayment of its Term A Loans pursuant to clauses (b) of this Section 2.14, in which case the aggregate amount of the prepayment that would have been applied to prepay Term A Loans but was so declined may be retained by the Group Members (such declined amounts to the extent retained by the Group Members, the Effective Amount “Declined Term Loan A Proceeds”); and
(ii) any Term Loan B Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan B Lender) may elect, by notice to the Term Loan B Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all Revolving Loansof any mandatory prepayment of its Term B Loans pursuant to clauses (b) and (c) of this Section 2.14, Swing Line in which case the aggregate amount of the prepayment that would have been applied to prepay Term B Loans and L/C Obligations then outstanding exceeds but was so declined may be retained by the Group Members (such declined amounts to the extent retained by the Group Members, the “Declined Term Loan B Proceeds”).
(h) If for any reason, the Total Revolving Loan Commitment at such timeCredit Exposure exceeds the total Revolving Credit Commitments then in effect (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.10), the Revolver Borrowers shall immediately prepay Revolving Credit Loans and/or cash collateralize the Letters of Credit (Ain accordance with Section 2.7(j)) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Mandatory Prepayments. The Borrowers (a) Upon receipt by any Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral, 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 Net Cash CollateralizeProceeds. Any such mandatory prepayment shall be applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 2.13(g) (Payments and Computations), as applicableany prepayments made by the Borrower required to be applied in accordance with this clause (b) the Obligations shall be applied as follows:
(i) If: first, at any time, to repay the Effective Amount outstanding principal balance of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay the Swing Line Loans until such Swing Loans shall have been repaid in full; second, to repay the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay outstanding principal balance of the Revolving Loans to the extent until such Revolving Loans shall have been paid in a sufficient amount are then outstanding full; and (C) otherwisethen, Cash Collateralize the if an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to the then Effective Amount 103% of the L/C Obligations, in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur Letter of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale or other disposition, prepay the Credit Obligations in the manner set forth in Section 2.06(d)9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(c) If at any time, in each case, in an the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to eighty-five percent (85%) such excess. If any such excess remains after repayment in full of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence aggregate outstanding Swing Loans and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoingRevolving Loans, the Borrowers Borrower shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing provide cash collateral for the acquisition Letter of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Credit Obligations in the manner set forth in Section 2.06(d), 9.3 (Actions in each case, in an aggregate principal amount equal to one hundred percent (100%) Respect of the Net Proceeds Letters of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(dCredit) in an amount equal to 103% of such excess.
(d) The Borrower hereby irrevocably waives the aggregate right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as provided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the sum Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such excess or such increase Revolving Loans shall have been repaid in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect full; and then to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds other Obligation then due and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excess.AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If Borrower or any Material Subsidiary at any timetime or from time to time makes or agrees in writing to make an Asset Sale, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay Borrower shall promptly notify Lender of such proposed Asset Sale (including the Swing Line Loans amount of the estimated Net Cash Proceeds to the extent Swing Line Loans be received in a sufficient amount are then outstanding, respect thereof) and (B) in connection with any mandatory prepayment under the First Lien Credit Agreement relating to such Asset Sale, the Net Cash Proceeds of such Asset Sale shall have been applied as provided in Section 2.01(e)(ii) of the First Lien Credit Agreement; provided, that (X) so long as all Debt under the First Lien Loan Documents has been paid in full and all commitments thereunder have been terminated, then (Y) within two (2) Business Days after such Asset Sale, Borrower shall, absolutely and unconditionally without notice or demand, prepay the Revolving Loans to outstanding Principal Amount of the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations Loan in an amount equal to fifty percent (50%) of such Net Cash Proceeds in connection therewith in accordance with Section 2.01(g) and Section 2.01(h). For the avoidance of doubt, if the Net Cash Proceeds of such Asset Sale have not been applied as provided in Section 2.01(e)(ii) of the First Lien Credit Agreement, due to a waiver in writing by First Lien Lender thereof, then Effective Borrower shall prepay the outstanding Principal Amount of the L/C Obligations, Loan as set forth in an aggregate principal amount equal clause (B)(Y) of this Section 2.01(e)(i) without any further requirement that such Net Cash Proceeds be first applied to such excessprepayment of any Debt under the First Lien Loan Documents.
(ii) The Borrowers Within two (2) Business Days after any Debt Issuance by Borrower or any Material Subsidiary, then in connection with any mandatory prepayment under the First Lien Credit Agreement relating to such Debt Issuance, the Net Cash Proceeds of such Debt Issuance shall repay each Swing Line Loan on have been applied as provided in Section 2.01(e)(iii) of the earlier to occur of First Lien Credit Agreement; provided, that (A) so long as all Debt under the Swing Line Settlement Date occurring after such Swing Line First Lien Loan is made Documents has been paid in full and all commitments thereunder have been terminated, then (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers Borrower shall, immediately after the completion of each sale absolutely and unconditionally without notice or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrencedemand, prepay the outstanding Obligations in Principal Amount of the manner set forth in Section 2.06(d), in each case, Loan in an aggregate principal amount equal to one hundred percent (100%) percent of the Net Cash Proceeds in connection with such Debt Issuance in accordance with Section 2.01(g) and Section 2.01(h). For the avoidance of doubt, if the Net Cash Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security TrusteeDebt Issuance have not been applied as provided in Section 2.01(e)(iii) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007)the First Lien Credit Agreement, when added due to the Net Insurance Proceeds and Net Condemnation Proceeds received a waiver in writing by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar yearFirst Lien Lender thereof, in the aggregate, exceed $25,000,000 for such calendar year, the then Borrower shall prepay the outstanding Obligations in Principal Amount of the manner Loan as set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse this Section 2.01(e)(ii) without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until any further requirement that such Net Insurance Cash Proceeds or Net Condemnation Proceeds are needed be first applied to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of any Debt under the Loans (and/or, if applicable, the Revolving First Lien Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessDocuments.
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Sources: Credit Agreement (Saba Software Inc)
Mandatory Prepayments. (i) If on any day an Indenture Deficit exists, U.S. Borrowers shall immediately pay to Agent an amount equal to such Indenture Deficit to be applied to the outstanding principal of the Revolver A Advances.
(ii) If on any day the Revolver B Usage exceeds the Maximum Revolver B Amount, U.S. Borrowers shall immediately pay to Agent an amount equal to such excess to be applied to the outstanding principal of the Revolver B Advances.
(iii) If on any day the aggregate outstanding principal amount of the Term Loans (including the Term Loan B PIK Amount) exceeds $35,000,000, U.S. Borrowers shall immediately pay to Agent an amount equal to such excess, to be applied to the outstanding principal of the Term Loans in accordance with clause (d) below.
(iv) If on any day a Term Loan B Deficit exists (based upon the most recent appraisal or financial statements, as applicable), U.S. Borrowers shall immediately pay to Agent an amount equal to such Term Loan B Deficit to be applied to the outstanding principal of the Term Loans and the Advances in accordance with clause (d) below. The Lender Group shall have the right to have an enterprise valuation performed by a qualified third party auditor selected by the Lender Group in its Permitted Discretion from time to time after the Closing Date for the purposes of the definition of "Term Loan B Deficit" and this Section 2.4(c)(iv); provided, that so long as no Event of Default has occurred and is continuing, Borrowers shall only be obligated to pay for fees and charges incurred for such enterprise valuations (together with the enterprise valuations referred to in clause (v) below) conducted no more frequently than 1 time per calendar year.
(v) If on any day a Term Loan C Deficit exists (based upon the most recent appraisal or financial statements, as applicable), U.S. Borrowers shall immediately pay to Agent an amount equal to such Term Loan C Deficit to be applied to the outstanding principal of the Term Loans and the Advances in accordance with clause (d) below. The Lender Group shall have the right to have an enterprise valuation performed by a qualified third party auditor selected by the Lender Group in its Permitted Discretion from time to time after the Closing Date for the purposes of the definition of "Term Loan C Deficit" and this Section 2.4(c)(v); provided, that so long as no Event of Default has occurred and is continuing, Borrowers shall only be obligated to pay for fees and charges incurred for such enterprise valuations (together with the enterprise valuations referred to in clause (iv) above) conducted no more frequently than 1 time per calendar year.
(vi) If on any day a U.S. Advance Deficit exists (based upon the most recent financial statements), U.S. Borrowers shall immediately pay to Agent an amount equal to such U.S. Advance Deficit to be applied to the outstanding principal of the Term Loans and the Advances in accordance with clause (d) below.
(vii) Within 10 days of delivery to Agent and Lenders of audited annual financial statements pursuant to Section 6.3(b), commencing with the delivery to Agent and Lenders of the financial statements for the Fiscal Year ended December 31, 2003, or, if such financial statements are not delivered to Agent and Lenders on the date such statements are required to be delivered pursuant to Section 6.3(b), 10 days after the date such statements are required to be delivered to Agent and Lenders pursuant to Section 6.3(b), U.S. Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, at any time, outstanding principal amount of the Effective Amount of all Revolving Loans, Swing Line Term Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrowers shall immediately Advances in accordance with clause (Ad) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations below in an amount equal to the then Effective Amount 75% of the L/C Obligations, in an aggregate principal amount equal to Excess Cash Flow of Parent and its Subsidiaries for such excessFiscal Year.
(iiviii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at Immediately upon any time after the Closing Date during any calendar year (including 2007), sale or disposition by any Loan Party sells or otherwise disposes its Subsidiaries of any assets (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately after the completion of each sale property or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Proceeds from any such sale or disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the U.S. Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not later than four (4) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations principal amount of the Term Loans and the Advances in the manner set forth in Section 2.06(daccordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not be required paid to make Agent as a prepayment pursuant to this clause of the Term Loans and the Advances) for all such sales or dispositions shall exceed $100,000 since the Closing Date (v) other than sales or dispositions of Accounts or Inventory or insurance policy or condemnation awards with respect to Inventory). Nothing contained in this subclause (viii) shall permit any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends or any of its Subsidiaries to repair, restore sell or replace otherwise dispose of any property or assets other than in accordance with Section 7.4.
(ix) Upon the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed receipt by a any Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Dateor any of its Subsidiaries of any Extraordinary Receipts, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence U.S. Borrowers shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations principal of the Term Loans and the Advances in the amount and in the manner described in the first sentence of this accordance with clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vid) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) below in an amount equal to the amount 100% of such excessExtraordinary Receipts, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer net of the Borrowers demonstrating the derivation of the additional amount resulting any reasonable expenses incurred in collecting such excessExtraordinary Receipts.
Appears in 1 contract
Mandatory Prepayments. The Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) IfOn the date of any Change of Control under clause (a), at any time(b), (c), (d), (e), (f) or (g) of the definition of Change of Control, the Effective Amount of Borrower shall prepay all Revolving Obligations (including, without limitation, all Loans, Swing Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan Commitment at such timeBorrowings, the Borrowers shall immediately (Aall unpaid interest, fees, costs and expenses) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations.
(ii) If, at any time after the Closing Date, the Effective Amount of all Revolving Loans and L/C Obligations then outstanding exceeds the lesser of (i) the Total Revolving Loan Commitment at such time and (ii) the Adjusted Borrowing Base Availability at such time (including after any reduction in the Applicable Advance Rate pursuant to Section 2.17(a); provided, that the portion of any mandatory prepayment under this Section 2.06(c)(ii) attributable to a reduction in the Applicable Advance Rate pursuant to Section 2.17(a) (each a“Stub Amount”) shall not be required to be repaid from then existing funds in the Borrower’s Operating Accounts so long as no Event of Default has occurred and is continuing; provided, further, that such Stub Amount shall be deemed Obligations due and payable for purposes of Section 2.05(c) and shall in any event be subject to Section 2.06(d)(v)), the Borrower shall immediately prepay the Obligations in the manner set forth in Section 2.06(e), in an aggregate principal amount equal to such excess.
(ii) The Borrowers shall repay each Swing Line Loan on the earlier to occur of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007)Date, any Loan Party the Borrower sells or otherwise disposes of any assets a Inbound Distribution Agreement or an Outbound Distribution Agreement and the Net Proceeds from such sale or other disposition exceeds $10,000,000, then the Borrower shall within three (other than sales permitted under Sections 5.02(c)), the Borrowers shall, immediately 3) Business Days after the completion of each such sale or other disposition, prepay the Obligations in the manner set forth in Section 2.06(d2.06(e), in each case, in an aggregate principal amount equal to eighty-five one hundred percent (85100%) of the Net Proceeds from any such sale or other disposition; provided that so long as the cash portion of the consideration for any such disposed assets is not less than 90% of all consideration for such disposed assets only the cash portion of such Net Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds (cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent (A) such Net Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (iii).
(iv) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers Borrower shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d2.06(e), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v1) Not later than four (4) Business Days following If, at any time after the date of receipt (each a “Receipt Closing Date”) by a , any Loan Party (issues or the Administrative Agent or the Security Trustee) of sells any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar yearEquity Securities, the Borrower shall shall, immediately after such issuance or sale, prepay the outstanding Obligations in the manner set forth in Section 2.06(d) 2.06(e), in each case, in an aggregate principal amount equal to the aggregate amount one hundred percent (100%) of the sum Net Proceeds of such excess or such increase in such excess. Notwithstanding the foregoingEquity Securities; provided, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. Ifif, at any time after the occurrence Closing Date, any Loan Party issues or sells any Equity Securities that take the form of a Receipt Date and prior common units or common shares, as applicable, that do not have any mandatory redemption, preferred or cumulative dividend obligations or other rights typically given to the completion of the corresponding repairpreferred units or shares, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail have no obligation to provide prepay the Net Proceeds arising therefrom; provided further, that if, at any time after the Closing Date, any Loan Party issues or sells any Equity Securities that contain repurchase obligations or obligations to pay preferred or cumulative dividends that do not arise until at least 6 months after the Maturity Date (and deposit the funds and proceeds required under clause (C) abovedo not have any other mandatory redemption, preferred or an Event of Default shall occurcumulative dividend obligations or other rights typically given to preferred units or shares), then the Borrower shall shall, immediately after such issuance or sale, prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificateSection 2.06(e), the Borrowers shall promptly make an additional prepayment of the Loans (and/orin each case, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an aggregate principal amount equal to fifty percent (50%) of the amount Net Proceeds of such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate signed by the chief financial officer of the Borrowers demonstrating the derivation of the additional amount resulting in such excessEquity Securities.
Appears in 1 contract
Mandatory Prepayments. The Borrowers shall prepay (or Cash Collateralize, as applicable) the Obligations as follows:
(i) If, If at any time, time the Effective Amount sum of all Revolving Loans, Swing Line Loans and L/C Obligations then the outstanding exceeds balances of the Total Revolving Loan Commitment at such time, the Borrowers shall immediately (A) prepay and the Swing Line Loans Loan exceed the Maximum Amount less the Reserves as then in effect, Borrower shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans required to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to eliminate such excess.
(ii) The Borrowers shall repay each Swing Line Loan on No later than the earlier to occur Business Day following receipt by any Credit Party of (A) the Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.
(iii) If, at any time after the Closing Date during any calendar year (including 2007), any Loan Party sells or otherwise disposes Net Cash Proceeds of any assets Disposition (other than sales permitted under Sections 5.02(c)Excluded Disposition Proceeds), the Borrowers shall, immediately after the completion of each sale or other disposition, Borrower shall prepay the Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to eighty-five percent (85%) of the Net Cash Proceeds from any of such sale or dispositionDisposition; provided provided, however, that so long as (a) no Default or Event of Default has occurred and is continuing, (b) the cash Net Cash Proceeds of all Dispositions (other than Excluded Disposition Proceeds) from the first day of the then current Fiscal Year through the applicable date of determination do not exceed $1,000,000 in the aggregate for all Credit Parties combined and (c) the applicable Credit Party shall have delivered to Agent written notice on or prior to the fifth Business Day after such Disposition (if such Disposition is a Condemnation) or on or prior to the third Business Day prior to the consummation of such Disposition (if such Disposition is not a Condemnation) of its election to allocate all or a portion of the consideration for any Net Cash Proceeds of such disposed Disposition to reinvest in capital assets is not less than 90% used or to be used in the businesses of the Credit Parties of the type engaged in by the Credit Parties as of the Restatement Closing Date or businesses reasonably related thereto (a "Reinvestment Transaction"), the applicable Credit Party may apply all consideration for such disposed assets only the cash or a portion of such Net Cash Proceeds at the time of sale will be counted for purposes of any prepayment required under this sentence and the remaining consideration shall be counted when received as cashto such Reinvestment Transaction within 180 days following such Disposition; otherwise 100% of all Net Proceeds provided, further, that (cash and non-cash1) shall be counted. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing at the time the Net Proceeds from such Relevant Sale are received that the applicable Borrower intends to reinvest all or any portion of such Net Cash Proceeds that Borrower does not so elect in replacement assets such written notice to the extent (A) allocate to such Net Proceeds are in fact committed Reinvestment Transaction shall be applied to be reinvested by such Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by such Borrower and the related seller within 90 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 270 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or a Default or Event of Default shall occur, then the Borrowers shall immediately prepay the outstanding Obligations Loans in the amount and in the manner described in the first sentence of accordance with this clause (iii).
(ivSection 1.3(b)(ii) If, at any time after the Closing Date, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments but excluding Permitted Indebtedness, the Borrowers shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such Indebtedness.
(v) Not no later than four the Business Day following receipt thereof by Agent; (42) Business Days following the date of receipt (each a “Receipt Date”) by a Loan Party (or the Administrative Agent or the Security Trustee) of any Net Insurance Proceeds or Net Condemnation Proceeds during any calendar year (including 2007), when added to the Net Insurance Proceeds and Net Condemnation Proceeds received by a Loan Party (or the Administrative Agent or the Security Trustee) during such calendar year, in the aggregate, exceed $25,000,000 for such calendar year, the Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.06(d) in an amount equal to the aggregate amount of the sum of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this clause (v) with respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative Agent in writing within four (4) Business Days after the related Receipt Date that it or another Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair, restoration or replacement that is executed by a Loan Party and the relevant counterparty(ies) within 90 days after the related Receipt Date, (B) such repair, restoration or replacement is completed within 270 days after the related Receipt Date and (C) the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, the Borrower has deposited with the Administrative Agent good funds equal to the difference between the cost of such repair, restoration or replacement and the amount of Net Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such funds and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the 90 or 270-day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related contract (in the case of clause (A)) or the completion of the related repair, restoration or replacement (in the case of clause (B)), or the Borrower shall fail to provide and deposit the funds and proceeds required under clause (C) above, or an Event of Default shall occur, then the Borrower shall immediately prepay the outstanding Obligations in the amount and in the manner described in the first sentence of this clause (v). If the Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repairReinvestment Transaction is consummated, restoration or replacement such proceeds shall be held by the Administrative Agent as collateral. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
(vi) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.06(c), (A) a certificate signed by the chief financial officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and Net Cash Proceeds allocated to such Reinvestment Transaction shall either be (Bx) deposited in a cash collateral account held by Agent or (y) applied to reduce the extent practicable, at least three days prior written notice outstanding principal balance of such prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal amount of each Loan (or portion thereof) to be prepaid. In the event that the Borrowers shall subsequently determine that the actual amount required to be prepaid was greater than the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments (which application shall be permanently reducednot result in a permanent reduction of the Revolving Loan Commitment) and upon such application to the Revolving Loan Agent shall establish a Reserve against the Borrowing Availability in an amount equal to the amount of such excessproceeds so applied; (3) Borrower may request a Revolving Credit Advance or release from such cash collateral account, as applicable, to fund such Reinvestment Transaction and so long as the conditions in Section 2.2 have been met, Revolving Lenders shall make such Revolving Credit Advance or Agent shall release funds from such cash collateral account to fund such Reinvestment Transaction; (4) in the event such Net Cash Proceeds have been applied against the Revolving Loan, the Reserve established with respect to such Net Cash Proceeds shall be reduced by the amount of such Revolving Credit Advance; and (5) if such Reinvestment Transaction is not consummated within 180 days following such Disposition or to the extent any portion of such Net Cash Proceeds allocated to such Reinvestment Transaction are not applied to such Reinvestment Transaction within 180 days following such Disposition, (A) such Net Cash Proceeds then held in such account shall immediately be applied to prepay the Loans in accordance with this Section 1.3(b)(ii) and (B) any Reserve allocated to such Reinvestment Transaction shall be immediately utilized through the borrowing by Borrower of a Revolving Credit Advance, the proceeds of which shall be applied to the prepayment of the Loans in accordance with this Section 1.3(b)(ii).
(iii) No later than the Business Day following receipt by any Credit Party of Net Cash Proceeds of any Debt Issuance (other than Excluded Debt Issuance Proceeds) or any Stock Issuance (other than Excluded Stock Issuance Proceeds), Borrower shall prepay the Obligations in an amount equal to such Net Cash Proceeds. No later than the Business Day following the ninetieth (90th) day following receipt by any Credit Party of Net Cash Proceeds of any Debt Issuance referred to in clause (c) or (d) of the definition of Excluded Debt Issuance Proceeds, Borrower shall prepay the Obligations in an amount equal to the amount (if any) of the Net Cash Proceeds from such Debt Issuance that have not been applied as provided in subclause (i) or (ii) of such clause (c) or (d), as applicable. No later than the Business Day following the ninetieth (90th) day following receipt by any Credit Party of Net Cash Proceeds of any Stock Issuance referred to in clause (c) of the definition of Excluded Stock Issuance Proceeds, Borrower shall prepay the Obligations in an amount equal to the amount (if any) of the Net Cash Proceeds from such Stock Issuance that have not been applied as provided in subclauses (i), (ii), (iii) or (iv) of such clause (c).
(iv) On each IDS Payment Date occurring on or after June 30, 2005 on which the payment of cash interest on one or more series or issues of IDS Subordinated Notes is then prohibited pursuant to Section 6.14 (such one or more series or issues of IDS Subordinated Notes, the "Subject IDS Subordinated Notes"), Borrower shall prepay the Obligations in an aggregate amount equal to the lesser of:
(A) 100% of the amount of (I) Distributable Cash as of such IDS Payment Date minus (II) the aggregate amount of cash dividends paid by Borrower on its common stock and cash interest payments made by Borrower on the Subordinated Debt in accordance with Sections 6.14(e) and (f) during the period from January 1, 2005 through the end of the Fiscal Quarter most recently ended prior to such IDS Payment Date, and
(B) 60% of the Consolidated Interest Expense (excluding any PIK Amounts) accrued to and including such IDS Payment Date from the immediately preceding IDS Payment Date which is attributable to such Subject IDS Subordinated Notes.
(v) On each IDS Payment Date occurring on or after June 30, 2005 on which the payment of cash dividends on Borrower’s Class A common stock is then prohibited pursuant to Section 6.14, Borrower shall prepay the Obligations in an aggregate amount equal to:
(A) 75% of the amount of Excess Cash as of such IDS Payment Date, minus
(B) the sum of (1) the aggregate amount of cash dividends paid by Borrower on its Class A common stock in accordance with Section 6.14(e) during the period from January 1, 2005 through the end of the Fiscal Quarter most recently ended prior to such IDS Payment Date and (2) the amount, if any, of any mandatory prepayment of the Loans on such IDS Payment Date pursuant to Section 1.3(b)(iv).
(vi) Borrower shall prepay the Obligations from insurance and condemnation proceeds in accordance with Section 5.4(c) and the Borrowers Mortgages, respectively.
(vii) Upon the occurrence of a Change of Control, Borrower shall concurrently therewith promptly (but in any event within three (3) Business Days of such Change of Control) deliver written notice to each Lender offering to prepay in full the aggregate principal amount of such Lender's Pro Rata Share of the Loans then outstanding, together with accrued and unpaid interest thereon, without premium, plus the payment of any LIBOR funding breakage costs in accordance with Section 1.13(b). If a Lender shall, within ten (10) Business Days of its receipt of such notice, deliver to the Administrative Agent a certificate signed by the chief financial officer Borrower written notice of its acceptance of such offer, Borrower shall, within sixty (60) days of the Borrowers demonstrating occurrence of such Change of Control, prepay in full the derivation aggregate principal amount of the additional such Lender's Pro Rata Share of the Loans outstanding as of the date of such prepayment, together with accrued and unpaid interest thereon, without premium, plus the payment of any LIBOR funding breakage costs in accordance with Section 1.13(b) and the amount resulting prepaid shall be applied to the Loans pursuant to Section 1.11(a) for the ratable benefit of each Lender that accepted such offer. The Agent shall give prompt notice to each Lender of the amount of each mandatory prepayment made by Borrower under this Section 1.3(b). Notwithstanding the foregoing, if the amount of any mandatory prepayment made by Borrower under this Section 1.3(b) (other than Section 1.3(b)(i) and Section 1.3(b)(vii)) shall be for less than all of the Term Loan (a "Mandatory Partial Term Prepayment" and the amount thereof the "Mandatory Partial Term Prepayment Amount"), any Term Lender holding a portion of the Term Loan may elect, by notice to Agent promptly following such Lender’s receipt of notice thereof pursuant to the preceding sentence, to decline to receive its ratable share of such Mandatory Partial Term Prepayment Amount, in which case the Mandatory Partial Term Prepayment Amount shall be applied to the Term Loan pursuant to Section 1.11(a) for the ratable benefit of each Term Lender that did not decline such excessprepayment.
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Sources: Credit Agreement (Otelco Inc.)